Dombrowski v. Pfister Motion for Leave to File Brief Amicus Curiae and Brief Amicus Curiae

    I jST t h e

#tt$iraa» (Entttt rtf tli? Imteh &Ut?B
October Term, 1964 

No. 52

J ames A . D om brow ski, et al., 

■— v . —

Appellants,

J am es H. P eister, etc., et al.,
Appellees.

ON A PPE A L PRO M  T H E  U N IT E D  STATES D ISTR IC T COURT 

EOR T H E  EA STE R N  D IST R IC T  OP L O U ISIA N A

MOTION FOR LEAVE TO FILE BRIEF AMICUS 
CURIAE AND BRIEF AMICUS CURIAE

J ack  G reenberg 
D errick  A. B ell , Jr.

Counsel for NAACP Legal Defense 
and Educational Fund 
10 Columbus Circle 
New York, New York 10019

A n t h o n y  G. A msterdam  
J ay  H . T opkis 

Of Counsel



I N D E X

Motion For Leave To File Brief Amicus Curiae...........  1

Brief Amicus Curiae ..........................................................  7

Co n c l u s io n .......................................................... ..........................  18

T able of Cases

Areeneaux v. Louisiana, 376 U. S. 336 (1964) ...............  11
Arkansas ex rel. Bennett v. NAAC.P Legal Defense

Fund, No. 45183 (Cir. Ct., Pulaski County) ...........  6
Arkansas ex rel. Bennett v. NAACP Legal Defense

Fund, No. 44679 (Cir. Ct., Pulaski County) ...........  5-6
Ashton Bryan Jones v. State of Georgia, No. 506, Octo­

ber Term, 1964, see certified transcript, pp. 45-84 .... 5

Baggett v. Bullitt, 377 U. S. 360 (1964) ...................9,11,16
Baines v. Danville, 4th Cir., Nos. 9080-9084, 9149-9150,

9212, decided August 10, 1964 ....................................... 10
Barr v. Columbia, 378 U. S. 146 (1964) ...................... . 11
Browder v. Gayle, D. C. M. D. Ala., 142 F. Supp.

707, affirmed 1956, 352 U. S. 903 (1956) .......................  7
Brown v. Allen, 344 U. S. 443 (1953) ............................... 14
Bush v. Orleans Parish School Board, 194 F. Supp.

182 (E. D. La., 1961) ..................................................  7

City of Tallahassee v. Patricia Due, No. 18863— Chan­
cery Cir. Ct., Tallahassee, Florida ......... ...................  5

Cleary v. Bolger, 371 U. S. 392 (1963) ........................... 9

Douglas v. City of Jeannette, 319 IT. S. 157 (1943) ..7, 8, 9,
11,15,16,17,18

Dresner v. Tallahassee, 375 U. S. 136 (1963)------ U. S.
------ , 84 S. Ct. 1895 (1964)

PAGE

11



11

Edwards v. South Carolina, 372 U. S. 229, p. 20 (1963) 10
England v. Louisiana State Board of Medical Ex­

PAGE

aminers, 375 U. S. 411, 416-417 (1964) ................... 16,17
Ex Parte Royall, 117 LT. S. 254 (1886) ........................... 9

Fay v. Noia, 372 U. S. 391 (1963) ................................... 14
Feiner v. New York, 340 U. S. 315, p. 20 (1951) ...........  11
Fields y . South Carolina, 375 U. S. 44 (1963) ...............  10

Hunter v. Wood, 209 U. S. 205 (1908) ........................... 9

In re Loney, 134 U. S. 372 (1890) .....    9
In re Neagle, 135 U. S. 1 (1890) ..................................  9,13
In The Matter of R. Jess Brown, Civ. No. 3382 (S. D. 

Miss. 1963), appeal pending (5th Cir. No. 21224) .... 4

Lefton v. Hattiesburg, 333 F. 2d 280, 286 (1964) ...........  10

Marsh v. Alabama, 326 U. S. 501, 509 (1946) ...............  8
Matter of S. W. Tucker, Circuit Court Greenville 

County, Virginia, February 15, 1962. Case filed as
“ ended Law case #407” ..............................................  4

McNeese v. Board of Education, 373 U. S. 668 (1963) 15
Monroe v. Pape, 365 U. S. 167 (1961) ...........................12,15
Murdock v. Penn., 319 U. S. 105 (1943) ........................... 7

N. A. A. C. P. v. Button, 371 U. S. 415, 433 (1963) ....5,10,11 
NAACP v. Committee on Offenses Against Adminis­

tration of Justice, 201 Va. 890, 114 S. E. 2d 721
(1963) ................................................................................  5

NAACP Legal Defense Fund v. Gray, Civ. No. 2436
(E. D. Va.) ......................................................................  6

New York Times Co. v. Sullivan, 376 U. S. 254, 269-270
(1964) 8



Palko v. Connecticut, 302 U. S. 319, 326-27 (1937) .......  8
People v. McLeod, 25 Wend. 482 (Sup. Ct. N. Y. 1841) 13

Pea y. United States, 350 U. S. 214 (1956) ...................  9

Speiser v. Randall, 357 U. S. 513, 525 ........................... 16
Stefanelli v. Miiiard, 342 U. S. 117 (1951) ................... 9

Texas v. NAACP, District Court No. 56-649, 7th Judi­
cial District, Smith County, Texas, May 8, 1957 .... 5

Townsend v. Sain, 372 U. S. 293 (1963) ....... ........... 14,16,17

Virginia v. Rives, 100 U. S. 313 (1879) ........................... 9

United States v. Harpole, 263 P. 2d 71, 82 (1959) .......  3

Watson v. Memphis, 373 U. S. 526, 533 (1963) ...............  18
Wright v. Georgia, 373 U. S. 284 (1963) ....................... 11

Constitutional  P rovisions and  S tatutes

28 U. S. C. §§1331, 1441 (1958) ..................................... 15

28 U. S. C. §1343 (1958) ................................................ 11,15

28 U. S. C. §2241(c) (3) (1958) ....................................... 14

28 U. S. C. §2283 (1958) ..................................................  8

Act of February 13, 1801, Ch. 4, §11, 2 Stat. 89, 92 re­
pealed by the Act of March 8, 1802, Ch. 8, 2 Stat. 132 12

Aet of March 8, 1802, ch. 8, 2 Stat. 132 ....................... 12

Act of February 4, 1815, ch. 31, §8, 3 Stat. 195, 198 .... 13

Act of March 3, 1815, ch. 43, §6, 3 Stat. 231, 233 ...........  13

Act of August 29, 1842, ch. 257, 5 Stat. 539 ...................  13

Act of March 3, 1863, ch. 81, §5, 12 Stat. 755-756 .......  13

Act of March 7,1864, ch. 20, §9,13 Stat. 14 ,17 ..........  13

Ill

PAGE



IV

page

Act of June 30, 1864, eh. 173, §50, 13 Stat. 223, 241 .... 13

Act of April 9, 1866, Ch. 31, §3, 14 Stat. 2 7 ...................  14

Act of May 11, 1866, ch. 80, 14 Stat. 46 ....................... 13

Act of July 13, 1866, ch. 184, §§67-68, 14 Stat. 98, 171,
172 ...................................................................................... 13

Act of February 5, 1867, ch. 27-28, 14 Stat. 385 ...........13,14

Act of May 31, 1870, Ch. 114, §§8, 18, 16 Stat. 140, 142,
144 ...................................................................................... 14

Act of April 20,1871, Ch. 22, §1,17 Stat. 1 3 ................... 14

Act of March 1, 1875, Ch. 114, §3, 18 Stat. 335, 336 .... 14

First Judiciary Act of September 24, 1789, Ch. 20, 1 
Stat. 73, 81-82 ................................................................. 12,13

Force Act of March 2, 1833, ch. 57, §§3, 7, 4 Stat. 632,
633, 634 .............................................................................. 13

Judiciary Act of March 3, 1875, ch. 137, 18 Stat. 470 .... 14

Ku Klux Act of April 20, 1871, Ch. 22, 17 Stat. 13 ....12,15

Eev. Stat. §1979, 42 U. S. C. §1983 (1958) ...............11,15

United States Constitution, Art. I ll , §1 .........................  12

United States Constitution, Fourteenth Amendment,
§5 12



V

Oth er  A uthorities

page

Bail in the United States: 1964, A Report to the Na­
tional Conference on Bail and Criminal Justice (May 
27-29, 1964) ......................................................................  10

Cong. Globe, 39th Cong., 1st Sess. 1834 (4/7/66) .......  13

Dunning, Essays on the Civil War and Reconstruction,
147, 156-163 (1898) .....................................    13

Frankfurter & Landis, The Business of the Supreme 
Court 64-65 (1928) ........................................................  14

Hart & Wechsler, The Federal Courts and the Federal 
System 727 (1954) ........................................................  12

Harvard Law Record, March 7,1963, p. 1 ....................... 4

Morgan, A Time to Speak (Harper & Row: New York,
N. Y., 1964) ............................... - ....................................  5

1 Morison & Commager, Growth of the American Re­
public 426-429, 475-485 (4th ed. 1950) ....................... 13

N. Y. Times, July 4, 1963, p. 38, c. 1 ............................... 4

N. Y. Times, June 28, 1964, p. 46, c. 1, 2 ....................... 2

Resolution, Board of Bar Commissioners of the Missis­
sippi State Bar, July 15, 1964 ...................................  3

United States Commission on Civil Rights, 1963 Re­
port, 117-9..........................................................................  3

Wechsler, Federal Jurisdiction and the Revision of the 
Judicial Code, 13 Law & Contemp. Prob. 216, 230 
(1948) ................................................................................ 15



I n  t h e

§>npxmx (tart nt %  Inttd* Stairs
October Term, 1964 

No. 52

J ames A. D om brow ski, et al.,
Appellants,

J am es H. P eistee, etc., et al.,
Appellees.

ON APPE A L EEOM  T H E  U N IT E D  STATES DISTRICT COURT 

FOR T H E  EASTERN DISTRICT OF L O U ISIA N A

MOTION FOR LEAVE TO FILE BRIEF 
AMICUS CURIAE

Petitioner, NAACP Legal Defense and Educational Fund, 
Inc., respectfully moves this Court for permission to file 
the attached brief amicus curiae for the following reasons:

This case presents the issue of whether the civil rights 
decisions of this Court and the civil rights legislation 
enacted by the Congress may be deprived of significance 
by attacks on their advocates.

According to the record here, the plaintiffs-intervenors 
are two lawyers practicing in New Orleans; they have been 
active in civil rights cases, representing Negroes in de­
segregation cases and other litigation asserting rights con­
ferred by the Constitution.

Acting on a search warrant issued under color of certain 
Louisiana statutes, city and state police conducted a search



2

at gun point of the law offices of the plaintiffs-intervenors. 
The police inspected all of the lawyers’ confidential legal 
files and seized and took away some of them.

The purpose of this search, according to plaintiffs-in­
tervenors, was to destroy their work in the field of civil 
rights. Anticipating further action under color of the same 
statutes, plaintiffs-intervenors asked the Court below for 
injunctive relief and for a declaration that the statutes are 
unconstitutional on their face and as applied. The requested 
relief was refused without a hearing.

Thus, according to the decision below, an unconstitutional 
statute may be used to destroy the work of lawyers en­
gaged in civil rights cases, and the federal courts will with­
hold relief.

The interest of petitioner NAACP Legal Defense and 
Educational Fund in any such ruling is, we suggest, mani­
fest. Petitioner is a New York corporation organized for 
the purpose, among others, of securing equality before the 
law, without regard to race, for all citizens. For many 
years, we have been the principal organization regularly 
supplying the legal services to Negro citizens who claim 
that they have been denied equal protection of the laws, 
due process of law and other rights secured by the consti­
tution and laws of the United States. N. Y. Times, June 
28, 1964, p. 46, c. 1, 2.

While we have no connection with the plaintiffs-inter­
venors in this case, and have not worked with them in the 
past, if  the files of our legal staff and our cooperating 
attorneys may be subjected to the same lawless invasion 
as is here alleged to have occurred, without relief being 
available in the federal courts, our activities and, indeed, 
the cause of civil rights will be most severely prejudiced.



3

The problem would perhaps be of lesser consequence 
were a plethora of advocates available to represent civil 
rights causes. But the precise opposite is true. According 
to a survey conducted by the United States Commission on 
Civil Bights, 1963 Report, 117-9, only a small segment of 
the Southern bar handles civil rights issues. And from 
our own experience we know that, until 1961, only one 
lawyer in Mississippi handled civil rights litigation, and 
even today there are only three. Only this summer has the 
Mississippi Bar Association adopted a resolution asserting 
the duty of its members to appear in civil rights cases.1 
But results from this resolution are yet to be made clear 
and there is no reason to believe that there will soon be a 
drastic change.

In part, this dearth of counsel is doubtless due to the 
social pressures which are brought to bear on advocates of 
civil rights causes. One-third of the lawyers who reported 
to the Commission on Civil Rights that they had handled 
civil rights cases reported also that they had suffered 
threats of physical violence, loss of clients, or social os­
tracism as a result. Ibid. The Fifth Circuit, in United 
States v. Harpole, 263 F. 2d 71, 82 (1959) noted that lawyers 
who “ fight against the systematic exclusion of Negroes 
from juries sometimes do so at the risk of personal sacrifice 
which may extend to loss of practice and social ostracism.”

The present case and similar instances demonstrate that 
the pressures are not merely business or social: in many 
areas, civil rights advocates face governmental and judicial 
action which has no parallel in the experience of counsel 
who do not appear in civil rights causes. Among the more 
disquieting examples are:

1 Resolution, Board of Bar Commissioners of the Mississippi 
State Bar, July 15, 1964.



4

1. Disbarment proceedings were begun in 1959 against 
S. W. Tucker, Esq., a Negro member of the Virginia bar, 
on charges that, in 1950 and 1952, he appeared in three 
cases at the behest of the NAACP. Only after a year of 
litigation were the charges dismissed. Matter of S. W. 
Tucker, Circuit Court, G-reensville County, Virginia. Feb. 
15, 1962. Case filed as “ ended Law case #407” .

2. Disciplinary proceedings were begun against R. Jess 
Brown, Esq., a Negro member of the Mississippi bar, on 
the grounds that, in a school desegregation case, he had 
appeared for one of 13 plaintiffs without authority and had 
inserted an unfounded allegation in the complaint. After 
a hearing which demonstrated that Mr. Brown’s appear­
ance was authorized and the allegation was not groundless,2 
the citation was discharged, but costs were taxed against 
Mr. Brown on the apparent ground that he had demon­
strated his innocence only at the hearing. In the Matter of 
R. Jess Brown, Civ. No. 3382 (S. D. Miss. 1963), appeal 
pending (5th Cir., No. 21224). Mr. Brown is the Mississippi 
attorney earlier mentioned who has handled civil rights 
cases since before 1961. Cf. Harvard Law Record, March 
7,1963, p. 1; N. Y. Times, July 4,1963, p. 38, c. 1. concerning 
the disbarment of a white Mississippi attorney who repre­
sented Episcopalian ministers involved in the Jackson Free­
dom Rides.

2 The unfounded allegation was that shots had been fired into 
the home of a named plaintiff. In point of fact, however, shots were 
fired into a cafe owned by that plaintiff, into the homes of at least 
six of her neighbors, and into her brother’s home. In the Matter of 
B. Jess Brown, Record on Appeal, pp. 96-97, 225-9; Supplemental 
Record 338, 370.



5

3. Tobias Simon, Esq., appeared for the Florida Civil 
Liberties Union in eases involving hundreds of civil rights 
demonstrators. He has appeared also in this Court in civil 
rights cases. In a local Tallahassee court, he was charged 
with contempt for having failed to appear on behalf of a 
young girl arrested in a civil rights demonstration. Follow­
ing the efforts of his counsel, Florida’s former governor, 
Fuller Warren, Esq., the charges were ultimately dismissed. 
City of Tallahassee v. Patricia Due, No. 18863— Chancery, 
Cir. Ct., Tallahassee, Fla.

4. Howard Moore, Jr. and Donald L. Hollowed, of the 
Georgia bar, were recently ordered to show cause why 
they should not be held in contempt of court because of a 
motion which they filed to recuse Judge Durwood T. Pye 
on the grounds of bias and prejudice. The contempt citation 
followed the denial of the motion by Judge Pye, who de­
scribed the very presentation of the motion as an insult to 
the court. The hearing on the order to show cause has 
been continued. Cf. Ashton Bryan Jones v. State of Geor­
gia, No. 506, October Term, 1964, see certified transcript, 
pp. 45-84.

5. Charles Morgan, Jr., a successful practicing Bir­
mingham attorney, was forced to leave Alabama after 
speaking out against the bombing of a Negro church where 
four Negro Sunday School children were killed. His ex­
perience is detailed in: A Time to Speak (Harper & Row, 
New York, N. Y., 1964).

Among actions taken against civil rights. organizations 
operating in the courts, see NAACP v. Button, 371 U. S. 
415 (1963); NAACP v. Committee on Offenses Against 
Administration of Justice, 201 Va. 890, 114 S. E. 2d 721 
(1963); Texas v. NAACP, District Court No. 56-649, 7th 
Judicial District, Smith County, Texas, May 8, 1957; 
Arkansas ex rel. Bennett v. NAACP Legal Defense Fund,



6

No. 44679 (Cir. Ct., Pulaski County); Arkansas ex rel. 
Bennett v. NAACP Legal Defense Fund, No. 45183 (Cir. 
Ct., Pulaski County); NAACP Legal Defense Fund v. 
Gray, Civ. No. 2436 (E. D. Va.).

The courts can, of course, do little about the social and 
economic pressures which operate against counsel in civil 
rights matters. All the more reason then, we respectfully 
suggest, for speedy judicial intervention in behalf of those 
counsel who suffer from official action.

Because of the broad significance of this case, which may 
not adequately appear in argument on behalf of the parties, 
we respectfully submit that the views of petitioner may be 
of interest to the Court.

We have asked permission of the parties to file this brief 
amicus curiae; counsel for appellees refused.

W herefore petitioner prays that the attached brief 
amicus curiae be permitted to be filed with this Court.

Respectfully submitted,

J ack  Greenberg 
D errick  A. B e ll , J r .

Counsel for NAACP Legal Defense 
and Educational Fund 
10 Columbus Circle 
New York, New York 10019

A n t h o n y  G. A msterdam  
J ay  H. T opkis 

Of Counsel



I n  th e

f&tpran* (£mxt of %  Inlfoft BMm
October Term, 1964 

No. 52

J ames A. D om brow ski, et al.,
Appellants,

J ames H. P fister, etc., et al.,
Appellees.

ON A PPE A L FRO M  T H E  U N IT E D  STATES DISTRICT COURT 

FOR T H E  EASTERN  DISTRICT OF L O U ISIA N A

BRIEF AMICUS CURIAE

This brief speaks only to the question whether the doc­
trine which Douglas v. Jeannette, 319 U. S. 157 (1943), 
broadly and unnecessarily1 announced should now be disap­
proved. The jurisdiction, in a strict sense, of the three- 
judge federal district court below to enjoin the enforce­
ment of state criminal statutes found, on their face or as 
administered, to violate the Fourteenth Amendment civil 
rights of the plaintiffs is clear beyond cavil,2 and the in­

1 Douglas v. Jeannette might have been disposed of simply on 
the ground put forth in 319 U. S. at 165, that the ordinance sought 
to be enjoined was that very day declared unconstitutional in 
Murdock v. Pennsylvania, 319 U. S. 105 (1943), and nothing in 
the record suggested that the threat of its enforcement endured 
a decision of the Supreme Court striking it down.

2 The Jeannette case itself so says, 319 U. S. at 162; and see 
Bush v. Orleans Parish School Board, 194 F. Supp. 182 (E. D. 
La. 1961) (3-judge court), aff’d per curiam, 368 U. S. 11 (1961); 
Browder v. Gayle, 142 F. Supp. 707 (M. D. Ala, 1956) (3-judge 
court), aff’d per curiam, 352 U. S. 903 (1956).



8

applicability of the statutory bar of 28 U. S. C. § 2283 
(1958) evident.3 Nevertheless, language in Jeannette does 
support the refusal of a federal court to enjoin prosecution 
under even a state statute which infringes the “ supremely 
precious” 4 freedoms of the First Amendment, and the rele­
gation of those freedoms to the “ remedy” of state prosecu­
tion and appeal.5 It is the contention of this amicus that 
such refusal is impermissible, and that federal equity should 
entertain injunctive challenges to state criminal statutes 
claimed invalid under the First and Fourteenth Amend­
ments, quite without regard to whether a plaintiff under­
takes (as the present plaintiffs did) the onerous evidentiary 
burden of showing that defendant state officials are conspir­
ing to deprive the plaintiff of his federal constitutional 
rights.

Amicus recognizes at the outset that this issue is not 
easily resolved. There are weighty justifications for this 
Court’s reluctance, manifest in several forms, to permit the 
federal courts’ involvement in state criminal prosecutions 
until those prosecutions have finally come to rest in the 
state courts. Abstention pending state court litigation 
avoids potentially unnecessary federal constitutional deci­
sion, acknowledges state legitimate concern for the expedi­
tious administration of state criminal law, and declines to

3 See Judge Wisdom’s dissenting opinion below.
4 A. A. A. C. P. v. Button, 371 U. S. 415, 433 (1963). Cf. Po.lko 

v. Connecticut, 302 U. S. 319, 326-327 (1937); Marsh v. Alabama, 
326 U. S. 501, 509 (1946), and authorities cited; New York Times 
Co. v. Sullivan, 376 U. S. 254, 269-270 (1964), and authorities cited.

5 Of course, even the language of Jeannette does not support the 
result below. The premise of Jeannette is that “No person is im­
mune from prosecution in good faith for his alleged criminal acts.” 
319 U. S. at 163. Plaintiffs here allege bad faith prosecution. This 
amicus does not press the issue of bad faith, however; bad faith 
being a virtually impossible matter to prove in many cases where 
in fact it exists, the amicus seeks a broader ground of federal equity.



9

make available collateral sniping devices susceptible of 
abuse to disrupt orderly state court proceedings. Cf. Vir­
ginia v. Rives, 100 U. S. 313 (1879) (limiting civil rights 
removal statute to exclude cases where removal is sought 
by reason of speculative claims of federal constitutional 
violation at future state tria l); Ex parte Royall, 117 U. S. 
254 (1886) (authorizing discretionary denial of federal ha­
beas corpus to try in advance of state criminal trial issues 
fairly triable in the state prosecution) ; Stefanelli v. Minard, 
342 U. S. 117 (1951), and Cleary v. Bolger, 371 XL S. 392 
(1963) (disallowing federal suppression of evidence to be 
offered at state criminal trial). As the cited cases reflect,, 
the seriousness of potential disruption of state processes 
by federal court anticipatory action is greatest where— 
unlike the present case—state prosecutions have once been 
begun and are actually underway. And, of course, none of 
the doctrines of federal judicial abstention are so steel- 
clad as not to admit of exceptions where particularly sensi­
tive federal interests are implicated. See, e.g., the excep­
tion to Royall recognized in In re Neagle, 135 U. S. 1 
(1890); In re Loney, 134 U. S. 372 (1890); Hunter v. Wood, 
209 U. S. 205 (1908); the exception to Stefanelli recognized 
in Rea v. United States, 350 U. S. 214 (1956); cf. Baggett 
v. Bullitt, 377 U. S. 360 (1964), infra.

Weighing against the considerations which favor federal 
abstention where the state criminal process touches fed­
erally protected freedoms of expression are certain hard 
realities. Consider the consequences of a federal district 
court’s refusal, on Jeannette grounds, to enjoin a state 
statute which criminally punishes First Amendment pro­
tected conduct:

(1) Persons exercising First Amendment freedoms will 
be arrested for prosecution. The arrests may cost them 
their jobs or such benefits as unemployment compensation.



10

See, e.g., Baines v, Danville, 4th Cir., Nos. 9080-9084, 9149- 
9150, 9212, decided August 10, 1964. In order to obtain 
their release from jail pending trial, they will have to make 
bail in amounts and forms which the reporters of B ail  in  
t h e  U nited  S tates : 1964, A R eport to t h e  N ational  
C onference on B ail  and Crim in al  J ustice (May 27-29, 
1964) found are frequently set in civil rights cases “ as pun­
ishment or to deter continued [civil rights activity]. . . . ” 
Id. at 53. Professional bonds will often be the only prac­
ticable way to make bail; once paid, the premiums are 
irrecoverably lost to the defendants, whatever the outcome 
of the prosecution.

(2) The cases will come to criminal trial in a state court. 
As this Court knows, see e.g., Edwards v. South Carolina, 
372 U. S. 229 (1963); Fields v. South Carolina, 375 U. S. 
44 (1963), statutes repressive of free expression lend them­
selves to mass prosecutions, mass trials. The burden of 
conducting a defense in such trials is indescribable. Apart 
from the obvious problem that legal manpower willing to 
undertake the defense is least available in areas where it 
is most needed, see N. A. A. C. P. v. Button, 371 U. S. 415, 
443 (1963); Lefton v. Hattiesburg, 333 F. 2d 280, 286 (1964), 
the protection of an individual defendant’s interests in such 
trials is next to impossible. Following trial and conviction, 
state appeals will be taken. Appeal or appearance bonds 
will be required, unless forma pauperis procedure is em­
ployed. Realistically, forma pauperis procedure is that in 
name only, for the cost in fees and time of securing the 
required notarized pauper’s oaths for several hundred de­
fendants is itself considerable.

(3) The defendants will attempt to preserve their federal 
claims as they run the gauntlet of state appellate proce­
dure. Some will succeed, with assistance from this Court,



11

e.g., Wriglit v. Georgia, 373 U. S. 284 (1963); Barr v. 
Columbia, 378 U. S. 146 (1964). Others w ill'fail, e.g.,
Arceneaux v. Louisiana, 376 U. S. 336 (1964); Dresner v.
Tallahassee, 375 U. S. 136 (1963);------ U. S .------- , 84 S. Ct.
1895 (1964).

(4) Those who preserve their federal claims on the 
merits will ask this Court to review their convictions on 
records in which all testimonial conflicts have been resolved 
by state judges or juries. Unfavorable findings of fact will 
lose federal constitutional rights. E.g., Feiner v. New York, 
340 U. S. 315 (1951).

(5) With so many vicissitudes and contingencies of liti­
gation standing as potential obstacles to the ultimate vin­
dication of their federal claims, many persons will simply 
forego the exercise of their constitutional rights of free 
expression rather than run the risk of prosecution. See 
N. A. A. C. P. v. Button, 371 U. S. 415, 432-438 (1963); 
Baggett v. Bullitt, 377 U. S. 360, 375-379 (1964). And this 
repression of free expression will be unequal in its effect, 
for the discretion of the prosecuting agencies and the ex­
pectable hostility of state courts and juries will weigh with 
particular force upon the proponents of unpopular causes.

These being the facts which this Court’s own experience 
has exposed, does the doctrine of Douglas v. Jeannette, 
remitting to state prosecution plaintiffs who invoke the fed­
eral civil rights injunctive jurisdiction given by 28 U. S. C. 
§1343 (1958) and Eev. Stat. § 1979, 42 U. S. C. §1983 
(1958) to challenge state criminal statutes under the First 
and Fourteenth Amendments, strike a balance consistent 
with the appropriate relations between state and national 
courts? The question is in the first instance one of con­
struction of the jurisdictional statutes, for (subject to con­
stitutional restrictions not arguably involved here) Con­



12

gress is given by the Constitution the primary responsi­
bility in designing the shape of our federalism—particu­
larly as regards the effect of the Fourteenth Amendment, 
II. S. Const., A m en d . XIY, § 5— and in defining the role 
of the federal courts in effectuating its goals, TJ. S. C onst ., 
A r t . I ll , § 1.

The plaintiffs here seek relief under statutes originating 
in the first section of the Ku Klux Act of April 20, 1871, 
ch. 22, 17 Stat. 13, an enactment which this Court has found 
was intended “ to afford a federal right in federal courts 
because, by reason of prejudice, passion, neglect, intol­
erance or otherwise, state laws might not be enforced and 
the claims of citizens to the enjoyment of rights, privileges, 
and immunities guaranteed by the Fourteenth Amendment 
might be denied by the state agencies.” Monroe v. Pape, 
365 U. S. 167, 180 (1961). In addition to the 1871 legisla­
tive background carefully canvassed in Monroe v. Pape, the 
larger sweep of history is instructive. During three quar­
ters of a century following the First Judiciary Act of Sep­
tember 24, 1789, ch. 20, 1 Stat. 73, Congress acted substan­
tially on the principle “ that private litigants must look to 
the state tribunals in the first instance for vindication of 
federal claims, subject to limited review by the United 
States Supreme Court.” H art & W echsler , T he  F ederal 
C ourts and th e  F ederal S ystem  727 (1954). It was not 
then supposed that the necessary and proper place for the 
trial litigation of all issues of federal law wras in the lower 
federal courts, and no general federal question jurisdiction 
wras given those courts.6 Particularly were the lower fed­
eral courts excluded from involvement in the state crim­

6 Save in the federalist Act of February 13, 1801, ch. 4, § 11, 
2 Stat. 89, 92, repealed by the Act of March 8, 1802, ch. 8, 2 Stat. 
132.



13

inal process,7 although from time to time limited incursions 
were authorized in classes of cases where there was more 
than ordinary reason to distrust the state judicial insti­
tutions.8 With the advent of the Civil War, Congress mul­
tiplied the incursions,9 and subsequently the Reconstruction 
commanders, familiar with the temper of the state courts, 
withdrew from those courts civil and criminal jurisdiction 
over cases involving Union soldiers and freedmen, and gave 
the jurisdiction to national military tribunals.10

7 See particularly § 14 of the Judiciary Act of September 24, 
1789, ch. 20, 1 Stat. 73, 81-82, excepting state prisoners from the 
federal habeas corpus jurisdiction.

8 In the face of New England’s resistance to the War of 1812, 
see 1 Morison & Commager, Growth of the A merican Republic 
426-429 (4th ed. 1950), federal removal jurisdiction was extended 
to civil and criminal cases involving federal customs officials in 
1815. Act of February 4, 1815, ch. 31, § 8, 3 Stat. 195, 198; Act 
of March 3, 1815, ch. 43, § 6, 3 Stat. 231, 233. South Carolina’s 
resistance to the tariff in 1833, see 1 Morison & Commagee, supra, 
475-485, evoked the Force Act of March 2, 1833, ch. 57, §§ 3, 7, 
4 Stat. 632, 633, 634, creating civil and criminal removal juris­
diction for cases involving federal revenue officers and habeas 
corpus jurisdiction to discharge all persons confined for acts done 
under federal authority. McLeod’s case (People v. McLeod, 25 
Wend. 482 (Sup. Ct. N. Y. 1841)) gave rise to the habeas corpus 
extension of the Act of August 29, 1842, ch. 257, 5 Stat. 539. 
See In re Neagle, 135 U. S. 1, 71-72 (1890).

9 The removal provisions of the 1833 act, note 8 supra were ex­
tended to cover eases involving internal revenue collection. Act 
of March 7, 1864, ch. 20, § 9, 13 Stat. 14, 17; Act of June 30, 1864, 
ch. 173, § 50, 13 Stat. 223, 241; Act of July 13, 1866, ch. 184, 
§§ 67-68, 14 Stat. 98, 171, 172. Further, the Act of March 3, 1863, 
ch. 81, § 5, 12 Stat. 755, 756, authorized removal of civil and 
criminal cases brought in the state courts against persons for acts 
done during the rebellion under color of authority derived from 
presidential order or act of Congress. Procedures under the 1863 
act were improved by the Act of May 11, 1866, ch. 80, 14 Stat. 
46, and the Act of February 5, 1867, ch. 27, 14 Stat. 385.

10 See Cong. Globe, 39th Cong., 1st Sess. 1834 (4 /7 /66 ); Dun­
ning, E ssays on the Civil W ae and Reconstruction 147, 156-163 
(1898).



14

The War radically altered the view which the national 
legislature had previously taken, that generally the state 
legislatures, courts and executive officials were the sufficient 
protectors of the rights of the American people. The Thir­
teenth, Fourteenth and Fifteenth Amendments wrote into 
the Constitution broad new guarantees of liberty and equal­
ity in which the federal government committed itself to 
protect the individual against the States. The four major 
civil rights acts undertook to elaborate and effectively es­
tablish the new liberties and, significantly, each of the acts 
contained jurisdictional provisions making the federal 
courts the front line of federal protection.11 No longer was 
it assumed that the state courts were the normal place for 
the enforcement of federal law save in the rare and narrow 
cases where they affirmatively demonstrated themselves 
unfit or unfair. Now the federal courts were seen as the 
needed organs, the ordinary and natural agencies, for the 
administration of federal rights. F ran k fu rter  & L andis, 
T he  B usiness op th e  S uprem e  C ourt 64-65 (1928). This 
is apparent in the enactment of the Act of February 5, 1867, 
ch. 28, 14 Stat. 385, the federal habeas corpus statute now 
found in 28 U. S. C. § 2241(c) (3) (1958), which assured 
that every state criminal defendant having a federal de­
fensive claim would have a federal trial forum for the liti­
gation of the facts underlying that claim. See Brown v. 
Allen, 344 U. S. 443 (1953); Fay v. Noia, 372 U. S. 391 
(1963); Townsend v. Sam, 372 U. S. 293 (1963). It is ap­
parent in the Judiciary Act of March 3, 1875, ch. 137, 18 
Stat. 470, which created general federal question jurisdic­
tion in original and removed civil actions and thus wrote 
permanently into national law the provision of a federal

11 Act of April 9, 1866, ch. 31, § 3, 14 Stat. 27; Act of May 31,
1870, ch. 114, §§ 8, 18, 16 Stat. 140, 142, 144; Act of April 20,
1871, ch. 22, § 1, 17 Stat. 13; Act of March 1, 1875, ch. 114, § 3, 
18 Stat. 335, 336.



15

trial court for every civil litigant engaged in a significant 
controversy based on a claim arising under the federal 
Constitution and laws. See 28 U. S. C. §§ 1331, 1441 (1958). 
Particularly, in view of the Reconstruction Congress’ over­
riding concern for the effective enforcement of civil rights, 
it is manifest in the supervening federal trial jurisdiction 
created by § 1 of the Ku Klux Act of 1871, now Rev. Stat. 
§ 1979, 42 U. S. C. § 1983 (1958), and 28 U. S. C. §1343 
(1958). Monroe v. Pape, 365 U. S. 167 (1961), supra; 
McNeese v. Board of Education, 373 U. S. 668 (1963). 
“ There Congress has declared the historic judgment that 
within this precious area, often calling for a trial by jury, 
there is to be no slightest risk of nullification by state 
process. The danger is unhappily not past. It would be 
moving in the wrong direction to reduce the jurisdiction 
in this field—not because the interest of the state is smaller 
in such cases, but because its interest is outweighed by 
other factors of the highest national concern.” Wechsler, 
Federal Jurisdiction and the Revision of the Judicial Code, 
13 L aw  &  C on tem p . P rob. 216, 230 (1948).

Seen against this background, it respectfully is sub­
mitted, the broad language of Douglas v. Jeannette errs 
in two fundamental aspects. First, it fails to give due re­
gard to the Congressional judgment of importance of fed­
eral judicial protection of federal civil rights under the 
pattern of federalism which emerged from the post-war 
amendments and enforcing legislation. Second, it ignores 
the large shift in congressional temper which caused the 
Reconstruction Congress—framers of the federal civil 
rights jurisdiction—to see the federal courts, not the state 
courts, as the generally fitting forum for the litigation of 
questions of federal law; and it thereby overlooks the in­
consistency with congressional purpose of remitting to the 
state courts litigants for whose particular protection from 
the state courts federal trial jurisdiction was created. This



16

is not to deny the legitimacy of Jeannette’s concern for the 
state interest in state criminal law administration. The 
problem is to weigh that interest appropriately. Where a 
state statute is challenged on its face under the First and 
Fourteenth Amendments—where a sustainable claim is 
made that the statute in any and every instance and applica­
tion violates freedom of expression— a State’s interest in 
that statute’s undisturbed administration seems hardly to 
preponderate over the prejudice to federal freedoms of 
their suppression during “an undue length of time” required 
for their vindication in the hazards and delays of state 
criminal litigation. Baggett v. Bullitt, 377 U. 8. 360, 379 
(1964). And where the statute is attacked as applied— 
where its application to a particular set of facts is claimed 
to infringe First-Fourteenth Amendment rights—it is all 
the more important that the trier of the facts be a federal 
trier. Holding last Term that a federal-question plaintiff 
remitted to state court civil proceedings under the absten­
tion doctrine was entitled to return for federal trial of 
issues of fact at the conclusion o f the state proceeding, 
this Court said:

“ Limiting the litigant to review here [the Supreme 
Court] would deny him the benefit of a federal trial 
court’s role in constructing a record and making fact 
findings. How the facts are found will often dictate the 
decision of federal claims. ‘It is the typical, not the 
rare, case in which constitutional claims turn upon the 
resolution of contested factual issues.’ Townsend v. 
Sain, 372 U. S. 293, 312. ‘There is always in litigation 
a margin of error, representing error in fact finding. 
. . . ’ Speiser v. Randall, 357 U. S. 513, 525. . . . The 
possibility of appellate review by this Court of a state 
court determination may not be substituted, against a 
party’s wishes, for his right to litigate his federal 
claims fully in the federal courts.” England v. Louisi­



17

ana State Board of Medical Examiners, 375 U. S. 411, 
418-417 (1964).

The Jeannette doctrine, of course, does precisely what 
England says may not be done: in a case admittedly within 
congressionally given federal trial jurisdiction, it refuses 
to hear the plaintiff and sends him into a state criminal 
trial from which there is no federal trial return.12 This 
it does notwithstanding, in cases touching First Amendment 
liberties, the delays and dangers of state criminal trial may 
appear to him so costly that suppression is the better part 
of valor.

Amicus urges the Court to restrict Jeannette to its facts 
and, reversing the judgment below, make clear the obliga­
tion of the federal district courts to enjoin enforcement of 
state criminal statutes which on their face or in their 
threatened application violate federal freedoms of expres­
sion. Such a mandate to the district courts is a matter of 
urgent necessity. It is no hyperbole to say that the critical 
issues of human liberty in this country today are not issues 
of rights, but of remedies. The American citizen has had 
a right to a desegregated school since 1954 and to a deseg­
regated jury since 1879, but schools and juries throughout 
vast areas of the country remain segregated. The American 
citizen has a right of free expression, but he may be ar­
rested, jailed, fined under the guise of bail and put to every 
risk and rancor of the criminal process if he expresses him­
self unpopularly. The “ right” is there on paper; what is

12 Except via the post-conviction habeas corpus route, with its 
inevitable delay, and subject to the discretion of the federal dis­
trict judge to deny the habeas petitioner an independent federal 
trial of the facts under Townsend v. Sain, 372 U. S. 293 (1963). 
In cases where First Amendment attack is made upon the criminal 
statute on which the prosecution or threatened prosecution is 
based, anticipatory federal injunction no more intrudes into state 
criminal administration than post-conviction federal habeas corpus: 
the only significant difference is that the first remedy is timely 
and effective, while the latter is not.



18

needed is the machinery to make the paper right a practical 
protection. Congress created some part of that machinery 
in the federal injunctive jurisdiction given in 1871. There 
remains to make the machine work. I f  it does not, it is 
merely delusive to suppose that the “basic guarantees of our 
Constitution are warrants for the here and now . . . ” 
Watson v. Memphis, 373 U. S. 526, 533 (1963).

CONCLUSION

As set forth in the above Motion for leave to file this 
brief amicus curiae, the decision of the court below sub­
jects lawyers engaged in civil rights cases to prosecution 
under unconstitutional statutes with clearly predictable 
harm to both the attorneys and those whom they are at­
tempting to help. It is submitted that the doctrine of Doug­
las v. Jeannette is inapplicable and that federal courts have 
both jurisdiction to hear this case and ample statutory au­
thority to grant the relief to which appellants are entitled, 
and which all such attorneys must have to continue repre­
senting persons seeking vindication of constitutional rights 
in the courts.

Respectfully submitted,

J ack  Greenberg 
D errick  A . B ell , J r .

Counsel for NAACP Legal Defense 
and Educational Fund 
10 Columbus Circle 
New York, New York 10019

A n t h o n y  G-. A msterdam  
J ay  H . T opkis 

Of Counsel



38