William J. Brennan, Jr.

“ Section 781-b of the New York Penal Law makes it a crime to distribute in quantity, among other things, any handbill for another which contains any statement concerning any candidate in connection with any election of public officers, without also printing thereon the name and post office address of the printer thereof and of the person at whose instance such handbill is so distributed. [1] Appellant was convicted of violating the statute by distributing anonymous handbills critical of the record of a United States Congressman seeking re-election at the 1964 elections. ”

“ The majority below was of the view that, in light of this prayer, abstention from deciding the declaratory judgment issue was justified because appellant had made no showing of 'special circumstances' entitling him to an injunction against criminal prosecution. Appellee supports this holding by reliance upon the maxim that a federal district court should be slow to act 'where its powers are invoked to interfere by injunction with threatened criminal prosecutions in a state court.' Douglas v. ”

“ In thus expanding federal judicial power, Congress imposed the duty upon all levels of the federal judiciary to give due respect to a suitor's choice of a federal forum for the hearing and decision of his federal constitutional claims. Plainly, escape from that duty is not permissible merely because state courts also have the solemn responsibility, equally with the federal courts, '* * * to guard, enforce, and protect every right granted or secured by the constitution of the United States * * *.' Robb v. ”

“ Board of Education, 373 U.S. 668, 83 S.Ct. 1433, 10 L.Ed.2d 622, we again emphasized that abstention cannot be ordered simply to give state courts the first opportunity to vindicate the federal claim. [14] After examining the purposes of the Civil Rights Act, under which that action was brought, we concluded that ' (w) e would defeat those purposes if we held that assertion of a federal claim in a federal court must await an attempt to vindicate the same claim in a state court.' 373 U.S., at 672, 83 S.Ct., at 1436. ”

“ But that policy was completely altered after the Civil War when nationalism dominated political thought [7] and brought with it congressional investiture of the federal judiciary with enormously increased powers. ”

“ But we have here no question of a construction of § 781-b that would 'avoid or modify the constitutional question.' Appellant's challenge is not that the statute is void for 'vagueness,' that is, that it is a statute 'which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application * * *.' Connally v. ”