Maps Primary and Secondary Highway Systems in Charles City and New Kent Counties

    I n  th e

m p x m x  (Emtrt of tl  ̂ little B M xb
October T erm, 1967 

No. 29

Sanford Zwickler,
Appellant,

A aron E. K oota, as District Attorney 
of the County of Kings,

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 FUND, INC.

J ack Greenberg '
Melvyn Zarr

10 Columbus Circle
NewT York, New York 10019

A nthony G. A msterdam 
3400 Chestnut Street 
Philadelphia, Pennsylvania 19104

Attorneys for NAACP Legal Defense 
and Educational Fund, Inc.



I N D E X

PAGE

Interest of Amiens ..............................................................  1

Argument ............... ............................. ......................... .......  2

I. The State Statute Challenged by This Suit Is 
Vague, Overbroad and Susceptible of Sweeping 
and Imroper Application Trenching Upon Eights 
of Free Expression ...........................................   3

II. The Court Below Erred in Abstaining..............  5

Conclusion................................................................................. 9

Table op Cases

Anderson v. Martin, 375 U. S. 399 (1964), reversing
206 F. Supp. 700 (E. D. La. 1962) ........................... 5, 7

Baggett v. Bullitt, 377 U. S. 360 (1964) ........................... 6, 8
Bond v. Floyd, 385 U. S. 116 (1966) ............................. 7

Cameron v. Johnson, 262 F. Supp. 873 (S. D. Miss. 
1966), on remand from 381 U. S. 741 (1965), appeal 
pending, 0. T. 1967, No. I l l  Misc................ .............. . 6

Dombrowski v. Pfister, 380 U. S. 479 (1965) ...................  5, 7

Evers v. Dwyer, 358 U. S. 202 (1958) ...... ........... ........  6, 7

Gayle v. Browder, 142 F. Supp. 707 (M. D. Ala. 1956), 
affirmed per curiam 352 U. S. 903 (1956) ............... 5,6,7



11

PAGE

Jacobs v. New Y ork ,------ U. S . ------- , 18 L. ed. 2d 1294
(1967)...................................................................................... 8

Mills v. Alabama, 384 U. S. 214 (1966) .......................3, 4, 8

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

Talley v. California, 362 U. S. 60 (1960) ......................  3,4
Tannenbaum v. New Y ork,------ U. S .------- , 18 L. ed. 2d

1300 (1967) ......................................................................  8
Thomas v. Mississippi, 380 U. S. 524 (1965) ...................  2

Zwicker v. B o ll,------ F. Supp.--------, W. D. Wise., No.
67-C-36, decided June 7, 1967, appeal pending, O. T. 
1967, No. ------  Misc.........................................................  6

Statutes

28 U. S. C. §2283 ................................................................  6

New York Penal Law, §781-b (McKinney’s Consol. 
Laws, c. 40) .......................................................... 2, 3,4, 6, 8



I n  th e

Court of %  Itutrft States
October T erm, 1967 

No. 29

Sanford Zwickler, 

—v.—
Appellant,

A aron E. K oota, as District Attorney 
of the County of Kings,

Appellee.

on  a p p e a l  f r o m  t h e  u n it e d  s t a t e s  d is t r ic t  c o u r t

FOR THE EASTERN DISTRICT OF NEW YORK

BRIEF AMICUS CURIAE OF NAACP LEGAL DEFENSE 
AND EDUCATIONAL FUND, INC.

Interest of Amicus

Amicus is a New York corporation organized for the 
purpose, among other things, of securing 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 
claims that they have been denied equal protection of the 
laws, due process of law, and other rights secured by the 
Constitution and laws of the United States. Moreover,



2

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 v. Thompson, 372 F. 2d 654 (5th Cir. 
1967), amicus’ attorneys represented civil rights workers 
prosecuted under a Jackson, Mississippi municipal ordi­
nance restricting 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 expenditure of many thousands of dol­
lars before the vindication of precious constitutional rights 
in this Court, Thomas v. Mississippi, 380 IT. 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 submits that its views may be of 
interest to the Court.

Argument

Amicus submits that the state statute challenged by this 
suit1 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.

1 Section 781-b of the New York Penal Law, McKinney’s Consol. 
Laws, c. 40.



3

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).

In Talley, the Court invalidated a municipal ordinance 
making it a crime to 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 
muster.

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”



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):

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.2

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.

2 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 
leaflets and circulars, see Lovell v. Griffin, 303 U. S. 444, 82 
L. ed. 949, 58 S. Ct. 666, to play an important role in the dis­
cussion of public affairs.



5

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,3 like New York,4 has a declaratory judgment 
procedure. Such a suggestion was, however, made in Gayle 
v. 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):

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 DombrowsTci 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.”

8 See Dombrowski v. Pfister, 380 U. S. 479, 491, footnote 6 (1965).
1 See 261 F. Supp. at 993.

II.



6

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).5 But, 
as this Court has pointed out, one is not required to risk 
arrest in order to test the validity of a state statute in­
fringing upon his federal rights, Evers v. Dwyer, 358 IT. 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 
he was 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.6 If 
he wrongly guessed “ no” , distributed his handbills and was 
arrested and charged under §781-b, then a federal court 
might well hold relief barred by comity or 28 U. S. C. §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, 0. T. 1967, No. I l l  Misc.; Zwicher
v. Boll, ------  F. Supp. - — , W. D. Wise., No. 67-C-36,
decided June 7, 1967 (three-judge court), appeal pending,
0. T. 1967, No. ------  Misc. In either event, he would he
required to wait until shortly before the election to com­

5 Notwithstanding appellant had previously been arrested and 
prosecuted under §781-b, the majority thought that appellant’s al­
legation of future arrest and prosecution for the same acts “pre­
sume [d] to read [the prosecutor’s] mind” (261 F. Supp. at 988).

6 Moreover, here, as in Baggett v. Bullitt, 311 U. S. 360, 378 
(1964), “it is difficult to see how an abstract construction of the 
challenged terms . . .  in a declaratory judgment action could elim­
inate the vagueness from these terms. It is fictional to believe that 
anything less than extensive adjudications, under the impact of a 
variety of factual situations, would bring the oath within the 
bounds of permissible constitutional certainty. Abstention does not 
require this.”



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 v. 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. S. 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 grounds 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 II. 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 loss or substantial impairment of those 
precious rights may be critical. For in such cases, the 
statutes lend themselves too readily to denial of those 
rights. 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



8

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 
later7—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
cisms 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.8

7 And sometimes not even then, see Jacobs v. New Y o rk ,------
U. S. ------ ■, 18 L. ed. 2d 1294 (1987) ; Tannenbaum v. New York,
---- - U. S .------ , 18 L. ed. 2d 1300 (1967).

8 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 v. Louisiana■ 
State Board of Medical Examiners, 375 U. S. 411, thereby de­
laying ultimate adjudication 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.



9

CONCLUSION

For the foregoing reasons, the decision below should 
be reversed.

Respectfully submitted,

J ack Greenberg 
Melvyn Zarr

10 Columbus Circle
New York, New York 10019

A nthony G. A msterdam 
3400 Chestnut Street 
Philadelphia, Pennsylvania 19104

Attorneys for NAACP Legal Defense 
and Educational Fund, Inc.



SB MORTON STRICT 
NEW YORK M.N.*

38