Brief Amicus Curiae — Zwickler v. Koota

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LIBRARY *

‘SUPREME COURT. uU. &

In THE =| ~QUG 28 1967

Siiprente Court of the p Bui en CLERK

OcToBER _ 1967

No. 29°

a

“SanForp ZWICKLER, |

Appellant,

—

Aaron. E. Koora, as District Attorney

of the County of Kings, |

ieee : Appellee.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF NEW. YORK

BRIEF AMICUS CURIAE OF NAACP LEGAL DEFENSE

. AND ] EDUCATIONAL _——* INC.

Jack GREENBERG

“Metvyn Zarr

_ 10 Columbus Cirele

New York, New. York 10019

. AntHoNY G. AMSTERDAM

’ 3400 Chestnut Street

Philadelphia, Pennsylvania 19104

. Attorneys for NAACP Legal Defense’

and Educational Pund, Ine.

L

2”

™

—

er \ INDEX

vee | | ) PAGE

Interest of ‘Amicus \ sis a EN :

| Argument RED ‘isaeendcantlabindathasetdaaa, —

I. The State Statute Cuallees by This Suit Bais

Vague, Overbroad and Susceptible of Sweeping

_ and Imroper Application Trenching Upon Rights

_. of Free Expression ’ 3

- I: The Court: Below Erred. in Abstaining AO eS

Cette ad | ETT igi ae

‘Taste or Cases — ere

Anderson v. Marti, 375 U. S. 399 (1964), pprersing

206 F. Supp. 700 (E.. D. ‘La. 1962) 5, 7

_ Baggett v. Bullitt, 3%7 U. S. 360 (1964) | sai 6,8.

— v. Floyd, 385 Ss. 116 (1966) imbalance: 3: On

a Cais v. Johnson, 262 P. Skpp. 873 (S. D. Miss.

_ 1966), on remand from 381 U. S. 741 (1965), haem

pening O. T. 06 , No. 111 Mise. ....

‘Dombrowski v. Pfister, 380 U. 8. 479 (1965) ....... ater 5,7

: “whe v. Dwyer, 358 U. S. 202 (1958) 7

Gayle v. Rrowded, 142 F. Sapp. 707 (M. Dr Ala. ne ;

affirmed per curiam 352 U. S. 903 (£956) vreseneeinesBy Gy 7

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veri 7 PAGE

; Selah’: New York, —-U. S. —, 18 L. ed. 24 1294 re

*. (1967) i | 8

PRAT RCRD NIE O/H

Mills v. Alabama, 384 U. S. 214 (1966) ue Yee

Strother v. Thompson, 372 F. 2d 654 (5th Cir. 1967)’ 2

‘Talley v. California, 362 U. 8S. 60 (1960). | 34.

Tannenbaum v. New York, —— U. S.. —, 18 L. ed. 2d

- 1800 (1967) .. SA ee cn Ye

Thomas v. Mississippi, 380 U. S. 524 <n) Ore PEE Tiabeel le a

; Twickas ¥» Boll, —— _F, Supp. —., ‘ W. D. Wise., No.

* 67-C-36, decided June 7, 1967, ane pending, O. T.

j 1967,. 6s o. — Mise. me SEE SA SCOR AE 6

- Srarurzs .

a ' 28 U.S. C. $2283 . . ee 6

_ New York Penal Law, adil (McKinney’s Cina

: Laws, ¢.- 40) ata ee ab 4,6,8

: on . P j

— ality. < Shasta agi poses cs.

San

in

-. @laims that they have been denied equal protection of the -

SP

‘Ivy THe |

apeeme Court of the United States >

_ Ocroser . TERM, 1967

at ea

’ Po - :

Sanrorp ZWICKLER, * A ae

: Appellant, +

: —v.—

/ Aanox KE, Koora,-as District ‘Attorriey

‘of the County of Kings, )

Appellee, |

A

ON APPEAL FROM THE, UNITED STATES DISTRICT ‘CoUkT

_ FOR THE EASTERN DISTRICT OF NEW YORK

°

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"BRIEF AMICUS. CURIAE OF NAACP LEGAL DEFENSE

| AND EDUCATIONAL rn NC,

Interest of Amicus.

Amicus is a New York corpofation organized for. the -

purpose, among other things, of sécuring equality before

the law, without regard to race, for all citizens. In this

connection, amicus’ staff attorneys often" have represented

citizens before various courts, including -this Court, on |

laws, due process of law, and other rights secured by the

, Constitution and laws of the United States. Moreover,

“Wwi@itew meme

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ace mandates SR i giel sn

its attorneys have represented citizens who have been de-

nied First Amendment rights while attempting to secure

equal treatment before the law without regard to race.

In Strother vy. Thompson,: 372 F. 2d 654 (5th Cir.

1967), amicus’ attorneys répresented -civil: rights workers

-prosecuted under a Jackson, Mississippi municipal ordi-

» nance restrieting the distribution of handbills in that city.

Having had experience with the pains, perils .and pro-

“longations of litigation in the state courts—litigation which .

in. the Jackson Freedom Rider cases alone required delay .

of four years and éxpenditure of many thousands of dol-

* lars before the vindication of precious constitutional rights”

in this Court, Thomas v. Mississippi, 380.U. S. 524 (1965) —

@ amicus’ attorneys sought'and obtained pretrial federal de-

claratory and injunctive relief against’ the handbill prose-

cutions.

Because of the broad significance of this case, which may

: not adequately appear in argument on behalf of the parties,

_ amicus respectfully siibmits that’ its views may be of

‘interest to the Court,

Amicus submits that the state statute challenged by this..

suit’ is on its face offensive to the First and Fourteenth

Amendments to the Constitution of the United States and >

that the court below erred in refusing to so hold. Rs:

Section 781-b of the New Yérk Penal Law, McKinney’s Consol.

’ Laws, ec. 40. .

.

I.

The State Statute Challenged by This Suit Is Vague, .

Overbroad and Susceptible of Sweeping and Improper

Application Trenching Upon Rights of Free Expression.

Appellant unsuccessfully sought below injunctive and

declaratory relief against Section 781-b of the New York >

Penal Law. That‘ statute makes it a crime, among other

things, to distribute “in quantity” any anonymous literature

concerning any person “in-connection with” any election.

The court below, one judge dissenting, took no position

on the validity of the statute. However, it is plain that

$781-b cannot. stand consistently with Talley v. California,

362 U. S. 60 (1960), and Mills v. Alabama, 384 U. S. 214

(1966), ™ . bee:

In Talley, the Court invalidated” municipal ordinance _

making it a crime fo distribute anonymous handbills “under -

any circumstances.” The Court, reserved the ‘question -

whether a more. limited ordinance—“limited [so as] to

prevent [fraud, false advertising, libel] or any other sup. .

. “posed evils” (362 U. S. at 64)—could pass constitutional -

. Diuster. ; :

_..,,"The New York statute purports to be more limited than

_ the: Talley ordinance in two ways. It proscribes distribu-

tion of anonymous literature only if the literature is: - (1)

“in quantity”; and (2) “in connection with” any election.

These’ “limitations” only serve to incorporate impermis-

sible vagueness into the statute and do not cure its over-

breadth. As the court below noted (261 F. Supp. at 988),

the phrase “in quantity” is not defined. Nor, amicus: adds,

is there a definition of the phrase “in. connection with” |

g we.

4

any election. The public ‘is required to play “guessing

games” (see 261 F. Supp. at 988) as to how proximate in

time and content to an election a handbill must be to meet -

“the statutory standard. °

But even if §781-b were more limited than the Talley

ordinance, ‘it would still not be limited enough to meet First

Amendment objections. |

In Mills v. Alabama, 384 U. S. 214 (1966), this Court in-

validated a state statute which made it a crime to solicit any

votes on election day in support of or in opposition to any

_ proposition being voted on that day. The state sought to °

justify the statute on the ground that its limitation as to

time (only one day) and content (only “electioneering”) _

‘made it reasonable.. But the Court rejected this defense,”

holding (384 U. S. at 220): 3

We hold that no test of reasonableness. can save a

' state law from invalidation as a violation of the First

Amendment when that law makes it a crime for a news- |

paper editor to do no more than urge ‘people to vote

one way or another in a publicly held election.?

Amicus submits that §781-b cannot escape invalidation

- under the First Amendment when it makes it a crime for

a person to do no more than distribute “in quantity” anony-

. \mous handbills “in connection with” a publicly held election.

- /

. * The fact that Mills involved newspaper publishing rather than

-handbill distribution has no constitutional significance (384 U. S.

at 219) : ; ;

The Constitution specifically selected the press, which ‘includes

“not only newspapers, books, and magazines, but also humble

L. ed. 949, 58 S: Ct. 666, to play an important role in the dis.

cussion of public affairs. es .

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Me...

The Court Below Erred in Abstaining.

The court below, by abstaining, put itself in conflict with

"several prior decisions of this Court. The court held that

’ appellant should first seek’ declaratory relief in an appro-

priate state court (261 F. Supp. at 993). However, in An-

derson v. Martin, 375 U.S. 399 (1964), reversing 206 -F.

Supp. 700 (E. D. La. 1962) (three-judge court), also a fed-

eral suit seeking to restrain the enforcement of a state

statute regulating the electoral process, this Court author- .

ized federal injunctive relief. No suggestion was. made

either in this Court or below that ‘such relief should first

have been sought in the appropriate state court, although:

Louisiana,’ like New. York,‘ has a ‘declaratory judgment

procedure. Such a suggestion was, however, made in Gayle.

_vV. Browder, 142 F. Supp. 707 (M. D. Ala. 1956) (three-

judge court), affirmed per curiam, 352 U. S. 903 (1956), and

firmly rejected (142 F. Supp. at 713) : i

The short answer is that [comity] has no application

where the plaintiffs complain that they are being de-

-prived of constitutional civil rights, for the protection

of which the Federal courts have a responsibility as

~ heavy as that which rests on the State courts.

_ And in Dombrowski v. Pfister, 380 U. S. 479, 491 (1965),

this Court unambiguously ‘held that when a statute broadly

overreaching First Amendment freedoms: is challenged in

. a federal court, the state must “assume the burden: of ob-

taining a permissible narrow construction in a noncriminal

proceeding.”

3 See Dombrowski v. Pfister, 380 U. S. 479, 491, footnote 6 (1965).

* See 261 F. Supp. at 993,

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The court below.also appeared to suggest that, appellant’s

federal suit was premature, since appellant was not threat-

ened with imminent arrest (see 261 F. Supp. at 988).° But,

as this Court S pointed out, one is not required to risk

arrest in order f\ test the validity of a state statute in- Y

fringing upon his federal rights, Evers v. Dwyer, 358 U.S. .

_ 202, 204 (1958) ; Gayle v. Browder, supra. Moreover, this

.. Suggestion ignored the practical restraints imposed upon

appellant by the statute. Appellant had to guess’ whether

A oh within the time. perimeter described by.“in connec.

tion with any election.” If he guessed “yes”, and’ the state

court disagreed, then it could dismiss his declaratory judg- -

ment suit by parity of reasoning with the court below. If

he wrongly guessed “no”, distributed his handbills and was

arrested and charged ugder §781-b, then a federal court -

might well hold relief barred by comity or 28 U.S. ¢. $2283.

See Cameron v. Johnson, 262 F. Supp. 873 (S. D. Miss.

. 1966) (three-judge court), on remand from 381 U. S. 741

_ (1965), appeal pending, O. T. 1967, No. 111 Mise.; Zwicker

v. Boll, —— F. Supp. ——, W. D. Wise., No. 67-C-36, .

decided, June: 7, 1967 (three-judge court), appeal pending, .

O. T. 1967, No. —~— Mise. In either event, he would be

required to wait until shortly before the election to com-

legation of future arrest and prosecution ‘for the Same acts “pre-

sume[d] to read [the prosecutor’s] mind” (261 F. Supp. at 988).

* Moreover, here; as. in Baggett v. Bullitt,. 377 U. S. 360, 378

(1964), “it is difficult to see how an abstract construction of the

challenged terms ...ina declaratory judgment action could elim-

7

mence his. suit—with the likelihood that the election would -

come and go before he. could obtain a protective judicial

ruling vindicating his plain First_ Amendment rights.

It is true that Anderson vy. Martin, Gayle v. Browder and

Evers v. Dwyer were all equal protection cases rather than

First Amendment cases. But that fact cannot diminish the -

| propriety or necessity of federal relief. As this Court stated

in Bond v. Floyd, 385 U. §. 116, 131 (1966) : | ¥

We are not persuaded by the state’s attempt to dis-

tinguish, for purposes of our jurisdiction, between

[legislative action] alleged to be on racial grourids and

[legislative action] alleged to violate the First Amend-

ment. .

The fact that this suit seeks the vindication of First

Amendment rights should, if anything, make this a more

compelling case for federal relief. As this Court held in

Dombrowski v. Pfister, supra, 380 U. S. at 486-87:

A criminal prosecution under a statute regulating ex-

pression usually involves imponderables and contin--

‘gencies that themselves ‘may inhibit the full exercise

of First Amendment freedoms , .. When the statutes

. also have an overbroad Sweep, as is here alleged, the

‘hazard of Toss or substantial impairment of those

' precious rights may be critical. For jn such cases, the

statutes lend themselves too readily to denial of those

Tights. The, assumption that defense of a criminal

prosecution will generally assure ample vindication of

constitutional rights is unfounded in such cases . - .

The chilling effect upon the exercise of First Amend.

ment rights may derive from the fact of .the prosecu-

[etl iin SE peti lak i's

tion, unaffected by- the prospects of its success or fail-

ure. (Emphasis added)

Notwithstanding this Court’s clear holding, and appel-

lant’s express ‘reliance upon it (261 F..Supp. at 988), the

court below brushed it aside, saying (261 F. ‘Supp. at 992):

“There is no suggestion . . . that the [appellant’s] defense

to any such prosecution [under §781-b] will not assure him

adequate-vindication-of-his- alleged constitutional: rights.”

Unless this Court reasserts the primacy of its ‘doctrine

over that of the district court, First Amendment rights will

- entail only the right to have one’s arrest and conviction for

constitutionally protected activity overturned some years

later’—not the right to engage in the protected activity

itself. First Amendment rights should be the province not

only of law professors but: of those persons whose criti-

'. isms and clamor “the Framers of our Constitution thought-

fully and deliberately selected to improve our society and

keep it free”, Mills v. Alabama, supra, 384 U.S. at 219. As

_ . long as $781-b deters this socially vital. and constitutionally

protected activity, abstention defeats rather than serves a

healthy federalism.* ape ee

a. 6

3

“And sometimes not even. then, see Jacobs v. New York,

U. S. —~, 18 L. ed. 2a 1294 (1967) ; Tannenbaum v. New Y. ork,

_—— U.S. —.,, 18 L. ed. 2d 1300 (1967).

"See Baggett v. Bullitt, 377 U. S. 360, 378-79 -(1964) :

We also cannot ignore that abstention operates to require

piecemeal adjudication in many courts, England vy. Louisiana

State Board of Medical Examiners, 375 U. S. 411, thereby de- . -

laying ultimate adjudieation on the merits for an undue length

of time, a result quite costly where the vagueness of a statute

may inhibit the exercise of First Amendment freedoms. .-. .

Remitting these litigants to the state courts . .. would further

protract' these proceedings, . . . with only the ‘likelihood that:

the case, ‘perhaps years later, will return to:the.. - District

Court and perhaps this Court for a decision on the identical

issue-herein decided. earey

\

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i

CONCLUSION

For the foregoing reasons, the decision below should |

be reversed.

Respectfully submitted,

Jack GREENBERG

-MELVvyn Zarr

» 10 Coluinbus Circle

New York, New York 10019

AnTHony G. AMsTERDAM :

3400 Chestnut Street |

Philad@phia, Pennsylvania 19104

Attorneys for NAACP Legal Defense

; and. Educational Fund» Inc.

. ¢ =

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