Several appellees, who were protesting American participation in
the Vietnam conflict at the edge of a crowd attending a speech by
President Johnson in Texas, were arrested and charged with
disturbing the peace, in violation of Tex.Pen.Code, Art. 474. Nine
days later, they brought this action against appellant state
officials asking that a three-judge district court be convened,
that enforcement of Art. 474 be enjoined, and that it be declared
unconstitutional. A few days later, the state charges were
dismissed, on the ground that appellees' conduct had occurred on a
military enclave over which Texas had no jurisdiction. The
three-judge court thereafter issued a per curiam opinion,
concluding that Art. 474
"is . . . unconstitutionally broad. The Plaintiffs herein are
entitled to their declaratory judgment to that effect, and to
injunctive relief against the enforcement of Article 474 as now
worded. . . . However, . . . the mandate shall be stayed and this
Court shall retain jurisdiction of the cause pending the next
session . . . of the Texas legislature. . . ."
Appellants appealed directly to this Court under 28 U.S.C. §
Since the District Court has issued neither an
injunction nor an order granting or denying one, this Court has no
jurisdiction under § 1253, which provides for review of orders
granting or denying interlocutory or permanent injunctions. Pp.
289 F. Supp. 469, dismissed.
Page 399 U. S. 384
MR. JUSTICE STEWART delivered the opinion of the Court.
On December 12, 1967, President Lyndon Johnson made a speech in
Bell County, Texas, to a crowd of some 25,000 people, including
many servicemen from nearby Fort Hood. The individual appellees
] arrived at the
edge of the crowd with placards signifying their strong opposition
to our country's military presence in Vietnam. Almost immediately
after their arrival, they were set upon by members of the crowd,
subjected to some physical abuse, promptly removed from the scene
by military police, turned over to Bell County officers, and taken
to jail. Soon afterwards, they were brought before a justice of the
peace on a complaint signed by a deputy sheriff, charging them with
"Dist the Peace." They pleaded not guilty, were returned briefly to
jail, and were soon released on $500 bond.
Nine days later, they brought this action in a federal district
court against Bell County officials, asking that a three-judge
court be convened, that enforcement of the state disturbing the
peace statute be temporarily and permanently enjoined, and that the
statute be declared unconstitutional on its face, "and/or as
applied to the
Page 399 U. S. 385
conduct of the Plaintiffs herein." The statute in question is
Article 474 of the Texas Penal Code, which then provided as
"Whoever shall go into or near any public place, or into or near
any private house, and shall use loud and vociferous, or obscene,
vulgar or indecent language or swear or curse, or yell or shriek or
expose his or her person to another person of the age of sixteen
(16) years or over, or rudely display any pistol or deadly weapon,
in a manner calculated to disturb the person or persons present at
such place or house, shall be punished by a fine not exceeding Two
Hundred Dollars ($200)."
A few days after institution of the federal proceedings, the
state charges were dismissed upon motion of the county attorney
because the appellees' conduct had taken place within a military
enclave over which Texas did not have jurisdiction. After dismissal
of the state charges, the defendants in the federal court filed a
motion to dismiss the complaint on the ground that
"no useful purpose could now be served by the granting of an
injunction to prevent the prosecution of these suits, because same
no longer exists."
The appellees filed a memorandum in opposition to this motion,
conceding that there was no remaining controversy with respect to
the prosecution of the state charges, but asking the federal court
nonetheless to retain jurisdiction and to grant injunctive and
declaratory relief against the enforcement of Article 474 upon the
ground of its unconstitutionality. A stipulation of facts was
submitted by the parties, along with memoranda, affidavits, and
other documentary material.
With the case in that posture, the three-judge District Court a
few weeks later rendered a per curiam opinion,
Page 399 U. S. 386
expressing the view that Article 474 is constitutionally
invalid, 289 F. Supp. 469. The opinion ended with the following
"We reach the conclusion that Article 474 is impermissibly and
unconstitutionally broad. The Plaintiffs herein are entitled to
their declaratory judgment to that effect, and to injunctive relief
against the enforcement of Article 474 as now worded, insofar as it
may affect rights guaranteed under the First Amendment. However, it
is the Order of this Court that the mandate shall be stayed, and
this Court shall retain jurisdiction of the cause pending the next
session, special or general, of the Texas legislature, at which
time the State of Texas may, if it so desires, enact such
disturbing the peace statute as will meet constitutional
289 F. Supp. at 475.
The defendants took a direct appeal to this Court, relying upon
28 U.S.C. § 1253, and we noted probable jurisdiction. 393 U.S. 819.
The case was originally argued last Term, but was, on June 16,
1969, set for reargument at the 1969 Term. 395 U.S. 956. Reargument
was held on April 29 and 30, 1970. We now dismiss the appeal for
want of jurisdiction.
The jurisdictional statute upon which the parties rely, 28
U.S.C. § 1253, provides as follows:
"Except as otherwise provided by law, any party may appeal to
the Supreme Court from an order granting or denying, after notice
and hearing, an interlocutory or permanent injunction in any civil
action, suit or proceeding required by any Act of Congress to be
heard and determined by a district court of three judges."
The statute is thus explicit in authorizing a direct appeal to
this Court only from an order of a three-judge
Page 399 U. S. 387
district court "granting or denying . . . an interlocutory or
permanent injunction." Earlier this Term, we had occasion to review
the history and construe the meaning of this statute in
Goldstein v. Cox, 396 U. S. 471
that case, a divided Court held that the only
orders that this Court has power to review
under § 1253 are those granting or denying preliminary injunctions.
The present case, however, involves no such refined a question as
For here there was no order of any kind
either granting or denying an injunction -- interlocutory or
permanent. Cf. Rockefeller v. Catholic Medical Center,
397 U. S. 820
Mitchell v. Donovan, 398 U. S. 427
that the District Court did was to write a rather discursive per
curiam opinion, ending with the paragraph quoted above. [Footnote 2
] Although the Texas
Legislature, at its next session, took no action with respect to
Article 474, the District Court entered no further order of any
kind. And even though the question of this Court's jurisdiction
under § 1253 was fully exposed at the original oral argument of
this case, the District Court still entered no order and no
injunction during the 15-month period that elapsed before the case
was argued again.
What we deal with here is no mere technicality. In Goldstein
v. Cox, supra,
we pointed out that:
"This Court has more than once stated that its jurisdiction
under the Three-Judge Court Act is to be narrowly construed,
"any loose construction of the requirements of [the Act] would
defeat the purposes of Congress . . . to keep within narrow
confines our appellate docket."
"Phillips v. United States
], at 312 U. S. 250
Stainback v. Mo Hock Ke Lok Po, 336 U. S.
, 336 U. S. 375
Page 399 U. S. 388
(1949); Moore v. Fidelity & Deposit Co.,
272 U. S.
, 272 U. S. 321
396 U.S. at 396 U. S. 478
But there are underlying policy considerations in this case more
fundamental than mere economy of judicial resources.
One of the basic reasons for the limit in 28 U.S.C. § 1253 upon
our power of review is that, until a district court issues an
injunction, or enters an order denying one, it is simply not
possible to know with any certainty what the court has decided -- a
state of affairs that is conspicuously evident here. The complaint
in this case asked for an injunction
"[r]estraining the appropriate Defendants, their agents,
servants, employees and attorneys and all others acting in concert
with them from the enforcement, operation or execution of Article
Is that the "injunctive relief" to which the District Court
thought the appellees were "entitled"? If not, what less was to be
enjoined, or what more? And against whom was the injunction to run?
Did the District Court intend to enjoin enforcement of all the
provisions of the statute? Or did the court intend to hold the
statute unconstitutional only as applied to speech, including
so-called symbolic speech? Or was the court confining its attention
to that part of the statute that prohibits the use, in certain
places and under certain conditions, of "loud and vociferous . . .
language"? The answers to these questions imply cannot be divined
with any degree of assurance from the per curiam opinion.
Rule 65(d) of the Federal Rules of Civil Procedure provides that
any order granting an injunction "shall be specific in terms," and
"shall describe in reasonable detail . . . the act or acts sought
to be restrained." [Footnote
Page 399 U. S. 389
As we pointed out in International Longshoremen's Assn. v.
Philadelphia Marine Trade Assn., 389 U. S.
, 389 U. S. 74
the "Rule . . . was designed to prevent precisely the sort of
confusion with which this District Court clouded its command." An
injunctive order is an extraordinary writ, enforceable by the power
"The judicial contempt power is a potent weapon. When it is
founded upon a decree too vague to be understood, it can be a
deadly one. Congress responded to that danger by requiring that a
federal court frame its orders so that those who must obey them
will know what the court intends to require and what it means to
at 389 U. S.
That requirement is essential in cases where private conduct is
sought to be enjoined, as we held in the Longshoremen's
case. It is absolutely vital in a case where a federal court is
asked to nullify a law duly enacted by a sovereign State. Cf.
Watson v. Buck, 313 U. S. 387
The absence of an injunctive order in this case has, in fact,
been fully recognized by the parties. In their motion for a new
trial, the appellants pointed out to the District Court that it had
given no more than "an advisory opinion." And the appellees, in
their brief in this Court, emphasized that "[n]o final relief -- of
Page 399 U. S. 390
kind -- has been ordered below." Accordingly, they said, "no
question is now properly raised as to the precise form of federal
remedy which may be granted." They asserted that "the issuance of
declaratory and injunctive relief will . . . be appropriate at an
appropriate time, to-wit, on remand to the court below." But it is
precisely because the District Court has issued neither an
injunction nor an order granting or denying one [Footnote 5
] that we have no power under §
1253 either to "remand to the court below" or deal with the merits
of this case in any way at all. [Footnote 6
The restraint and tact that evidently motivated the District
Court in refraining from the entry of an injunctive order in this
case are understandable. But when a three-judge district court
issues an opinion expressing the view that a state statute should
be enjoined as unconstitutional -- and then fails to follow up with
an injunction -- the result is unfortunate, at best. For when
confronted with such an opinion by a federal court, state officials
would no doubt hesitate long before disregarding it. Yet, in the
absence of an injunctive order, they are unable to know precisely
what the three-judge court
Page 399 U. S. 391
intended to enjoin, and unable as well to appeal to this
It need hardly be added that any such result in the present case
was doubtless unintended or inadvertent. We make the point only for
the guidance of future three-judge courts when they are asked to
enjoin the enforcement of state laws as unconstitutional.
The appeal is dismissed for want of jurisdiction.
It is so ordered.
MR. JUSTICE BLACKMUN took no part in the consideration or
decision of this case.
The appellee University Committee to End the War in Viet Nam is
an unincorporated association centered in Austin, Texas. The
individual appellees are two members of the association and one
nonmember who is sympathetic with its purposes.
The court did also write an "addendum" in response to a motion
for a new trial. 289 F. Supp. at 475.
Rule 65(d) reads as follows:
"(d) Form and Scope of Injunction or Restraining Order. Every
order granting an injunction and every restraining order shall set
forth the reasons for its issuance; shall be specific in terms;
shall describe in reasonable detail, and not by reference to the
complaint or other document, the act or acts sought to be
restrained, and is binding only upon the parties to the action,
their officers, agents, servants, employees, and attorneys, and
upon those persons in active concert or participation with them who
receive actual notice of the order by personal service or
This is not to suggest that lack of specificity in an injunctive
order would alone deprive the Court of jurisdiction under § 1253.
But the absence of any semblance of effort by the District Court to
comply with Rule 65(d) makes clear that the court did not think
that its per curiam opinion itself constituted an order granting an
Even if the opinion and subsequent inaction of the District
Court could be considered a denial of an injunction because the
injunctive relief demanded was not forthcoming, the appellants
could not appeal from an order in their favor. Public Service
Comm'n v. Brashear Freight Lines, Inc., 306 U.
We do not decide whether the District Court's opinion might have
constituted a "judgment" so as to be appealable to the Court of
Appeals for the Fifth Circuit. Cf. United States v. Hark,
320 U. S. 531
320 U. S. 534
United States v. Schaefer Brewing Co., 356 U.
, 356 U. S.
-233; Burns v. Ohio, 360 U.
, 360 U. S.
R. Robertson & F. Kirkham,
Jurisdiction of the Supreme Court of the United States § 45
(Wolfson & Kurland ed.1951). In any event, we assume the
District Court will now take formal action of sufficient precision
and clarity to insure to any aggrieved party the availability of an
MR. JUSTICE WHITE, with whom MR. JUSTICE BRENNAN joins,
I join the opinion of the Court but deem it appropriate to
express my view that the opinion of the District Court should be
viewed as having the operative effect of a declaratory judgment
invalidating the Texas statute at issue in this case. The
appellants were thus entitled to have this phase of the case
reviewed in the Court of Appeals, but could not come directly here,
since our § 1253 jurisdiction is limited to appeals from injunctive
orders. I agree with the Court that the opinion of the District
Court cannot be construed as an order granting an injunction, and
that, if it amounts to an order denying an injunction, it is not
appealable to this Court by the appellants.