William J. Brennan, Jr.

“ An injunction barring enforcement of a criminal statute against particular conduct immunizes that conduct from prosecution under the statute. A broad injunction against all enforcement of a statute paralyzes the State's enforcement machinery: the statute is rendered a nullity. A declaratory judgment, on the other hand, is merely a declaration of legal status and rights; it neither mandates nor prohibits state action. See Flemming v. Nestor, 363 U.S. 603, 607, 80 S.Ct. 1367, 1370, 4 L.Ed.2d 1435 (1960) ; Currie, The Three-Judge District Court in Constitutional Litigation, 32 U.Chi.L.Rev. ”

“ Even persons confident that their contemplated conduct would be held to be constitutionally protected and that accordingly any state conviction would be overturned may be deterred from engaging in such conduct by the prospect of becoming enmeshed in protracted criminal litigation, and by the risk that in the end, years later, their confidence will prove to have been misplaced and their resources wasted. This deterrence is magnified by the scope that vagueness or overbreadth gives for discriminatory or capricious enforcement. ”

“ However, where federal intervention is sought after a state prosecution has commenced and while it is pending, the interests protected by federal intervention must be weighed against the broad countervailing principles of federalism. The pending state proceeding ordinarily provides an existent, concrete opportunity to secure vindication of constitutional claims in the state courts, with ultimate review by this Court. ”

“ It simply prevents particular unconstitutional use of the State's criminal law in bad faith against the federal plaintiff. Under Douglas v. City of Jeannette, supra, 319 U.S. at 164, 63 S.Ct., at 881, 87 L.Ed. 1324, a person has no immunity from a state prosecution 'brought lawfully and in good faith,' but he is entitled to federal relief from a state prosecution which amounts to bad-faith harassment. [14]
The situation is different where the plaintiff seeks federal intervention on the ground that a state statute is unconstitutional, but does not allege facts showing bad-faith harassment. ”

“ Here, there was no other forum for the adjudication of appellees' constitutional objections to the ordinance.
There is, of course, some intrusion into a state administration of its criminal laws whenever a federal court renders a declaratory judgment upon the constitutionality of a state criminal enactment. The Court holds today in Samuels v. Mackell, supra, that considerations of federalism ordinarily make the intrusion impermissible if a state prosecution under that enactment is proceeding at the time the federal suit is filed. ”

“ Property rights must yield provisionally to governmental need. Thus, while protection of life and liberty from administrative action alleged to be illegal, may be obtained promptly by the writ of habeas corpus, the statutory prohibition of any 'suit for the purpose of restraining the assessment or collection of any tax' postpones redress for the alleged invasion of property rights. ”

“ There is an utter absence of any evidence that the seizures and the arrest of appellee Ledesma, and the filing of the informations accusing Ledesma of violation of the state statute, were undertaken in bad faith to harass appellees, or for any purpose except the goodfaith enforcement of the State's criminal laws. ”

“ That case was an action by employers for a declaration that a state unemployment compensation scheme which imposed a tax upon them was unconstitutional. Congress has always treated judicial interference with the enforcement of tax laws as a subject governed by unique considerations, and this Court has consistently enforced the congressional command that ' (t) he district courts shall not enjoin, suspend or restrain the assessment, levy or collection of any tax under State law where a plain, speedy and efficient remedy may be had in the courts of such State.' 28 U.S.C. § 1341. ”

“ The District Court held that a three-judge court was required to deal with the attack on § 235.00 since the claim was that that section was facially unconstitutional. However, the attack on §§ 148-150 of the Code of Criminal Procedure was not that those sections were facially unconstitutional but only that those sections were unconstitutionally invoked before there had been an adversary judicial determination on the obscenity of the publications in question (i.e., as applied) . ”

“ The danger of state court hostility to the federal claim is greatest in such suits. Jurisdiction of the federal courts to hear such cases has been established at least since Ex parte Young, and it has been rightly observed by a distinguished judge that 'the authority and finality of Ex parte Young can hardly be overestimated.' Hutcheson, A Case for Three Judges, 47 Harv.L.Rev. ”

“ In this situation collateral resort to a federal court will not speed up the resolution of the controversy since that will not come to an end in any event until the state litigation is concluded. Moreover, federal intervention may disrupt the state proceeding through the issuance of necessary stays or the burdensome necessity for the parties to proceed in two courts simultaneously. Federal adjudication of the matters at issue in the state proceeding may otherwise be an unwarranted and unseemly duplication of the State's own adjudicative process. ”

“ The situation here is quite different, however. 'Basically, the question in each case is whether the facts alleged, under all the circumstances, show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.' Maryland Casualty Co. ”

“ When no state proceeding is pending and federal intervention is therefore appropriate, [15] the federal court must decide which of the requested forms of relief should be granted. Ordinarily a declaratory judgment will be appropriate if the case-or-controversy requirements of Article III are met, if the narrow special factors warranting federal abstention are absent, and if the declaration will serve a useful purpose in resolving the dispute. See generally Zwickler v. Koota, supra ”

“ But in my view the federal court's duty to render a declaratory judgment is not the less whatever may be its res judicata effect as between the parties to the litigation.↑ ' (T) axes are the lifeblood of government, and their prompt and certain availability an imperious need. ”

“ Very different considerations apply in the context of state criminal statutes challenged as unconstitutional. At issue on one side are fundamental personal rights, not property rights. At risk on the other is not the current financing of state government, but the future enforcement of a particular criminal statute.↑ Title 28 U.S.C. § 2283 is certainly not analogous to the prohibition of federal anticipatory relief in tax cases. That statute applies only where there is a pending state proceeding, Dombrowski v. ”

“ BE IT FURTHER ORDAINED that the performance of any dance, song, or act in any public place, or in any public manner representing or portraying or reasonably calculated to represent or portray any act of sexual intercourse between male and female persons, or any act of perverse sexual itnercourse or contact, or unnatural carnal copulation, between persons of any sex, or between persons and animals. ”

“ Performance by any person or persons in the presence of another person or persons with the intent of arousing sexual desire, of any lewd, lascivious, sexually indecent dancing, lewd, lascivious or sexually indecent posing, lewd, lascivious or sexually indecent body movement. ”

“ The controversy over the power of federal courts to declare state statutes unconstitutional and to enjoin their enforcement has roots that reach back at least to Chisholm v. Georgia, 2 Dall. 419, 1 L.Ed. 440 (1793) , where in a contract action this Court held that a State could be sued by a citizen of another State. 'That decision * * * created such a shock of surprise throughout the country that, at the first meeting of Congress thereafter, the Eleventh Amendment to the Constitution was almost unanimously proposed, and was in due course adopted by the legislatures of the States.' Hans v. ”

“ The appellants argue, however, that no controversy requisite to relief under the Federal Declaratory Judgment Act existed after the nolle prosequi was entered. This argument presents the second threshold question.
Appellants rely upon Golden v. Zwickler, 394 U.S. 103, 89 S.Ct. 956, 22 L.Ed.2d 113 (1969) . In that case a New York criminal statute prohibited the distribution of anonymous handbills in election campaigns. A distributor of anonymous handbills opposing the re-election of a Congressman ought in federal court a judgment declaring the statute unconstitutional. ”

“ Louisiana, 134 U.S. 1, 11, 10 S.Ct. 504, 505, 33 L.Ed. 842 (1890) (Bradley, J.) . The amendment was thought to have overruled Chisholm. Although the amendment might have been construed to give a broad immunity from federal suits to States and state officials acting pursuant to state policy, that construction was rejected in Osborn v. ”