Appellee Harris, who had been indicted for violating the
California Criminal Syndicalism Act, sued in the Federal District
Court to enjoin appellant, the county District Attorney, from
prosecuting him, contending that the Act is unconstitutional on its
face and inhibits him in exercising his free speech rights.
Appellees Dan and Hirsch, claiming that the prosecution of Harris
would "inhibit" them from peacefully advocating the program of the
political party to which they belonged, and appellee Broslawsky, a
college professor, claiming that the prosecution made him
"uncertain" as to whether his teaching and reading practices would
subject him to prosecution, intervened as plaintiffs. All asserted
that they would suffer irreparable injury unless a federal
injunction was issued. A three-judge court, relying on
Dombrowski v. Pfister, 380 U. S. 479
held the Act void for vagueness and overbreadth, and enjoined
1. There is no basis for equitable jurisdiction based on the
allegations of appellees other than Harris, who have not been
indicted, arrested, or threatened with prosecution, and the normal
course of a state criminal prosecution cannot be blocked on the
basis of fears of prosecution that are merely speculative. Pp.
401 U. S.
2. Federal courts will not enjoin pending state criminal
prosecutions except under extraordinary circumstances where the
danger of irreparable loss is both great and immediate in that
(unlike the situation affecting Harris) there is a threat to the
plaintiff's federally protected rights that cannot be eliminated by
his defense against a single prosecution. The decision in
which involved alleged bad faith
harassment and is factually distinguishable from this case, does
not substantially broaden the availability of injunctions against
state criminal prosecutions. Pp. 401 U. S.
Page 401 U. S. 38
BLACK, J., delivered the opinion of the Court, in which BURGER,
C.J., and HARLAN, STEWART, and BLACKMUN, JJ., joined. STEWART, J.,
filed a concurring opinion, in which HARLAN, J., joined,
p. 401 U. S. 54
BRENNAN, J., filed an opinion concurring in the result, in which
WHITE and MARSHALL JJ., joined, post,
p. 401 U. S. 56
DOUGLAS, J., filed a dissenting opinion, post,
401 U. S.
MR. JUSTICE BLACK delivered the opinion of the Court.
Appellee, John Harris, Jr., was indicted in a California state
court, charged with violation of the California Penal Code §§ 11400
and 11401, known as the California Criminal Syndicalism Act, set
out below. [Footnote 1
] He then
Page 401 U. S. 39
a complaint in the Federal District Court asking that court to
enjoin the appellant, Younger, the District Attorney of Los Angeles
County, from prosecuting him, and alleging that the prosecution and
even the presence of the Act inhibited him in the exercise of his
rights of free speech and press, rights guaranteed him by the First
and Fourteenth Amendments. Appellees Jim Dan and Diane Hirsch
intervened as plaintiffs in the suit, claiming that the prosecution
of Harris would inhibit them as members of the Progressive Labor
Party from peacefully advocating the program of their party, which
was to replace capitalism with socialism and to abolish the profit
system of production in this country. Appellee Farrell Broslawsky,
an instructor in history at Los Angeles Valley College, also
intervened, claiming that the prosecution of Harris made him
uncertain as to whether he could
Page 401 U. S. 40
teach about the doctrines of Karl Marx or read from the
Communist Manifesto as part of his classwork. All claimed that,
unless the United States court restrained the state prosecution of
Harris, each would suffer immediate and irreparable injury. A
three-judge Federal District Court, convened pursuant to 28 U.S.C.
§ 2284, held that it had jurisdiction and power to restrain the
District Attorney from prosecuting, held that the State's Criminal
Syndicalism Act was void for vagueness and overbreadth in violation
of the First and Fourteenth Amendments, and accordingly restrained
the District Attorney from "further prosecution of the currently
pending action against plaintiff Harris for alleged violation of
the Act." 281 F.
, 517 (1968).
The case is before us on appeal by the State's District Attorney
Younger, pursuant to 28 U.S.C. § 1253. In his notice of appeal and
his jurisdictional statement, appellant presented two questions:
(1) whether the decision of this Court in Whitney v.
California, 274 U. S. 357
holding California's law constitutional in 1927 was binding on the
District Court and (2) whether the State's law is constitutional on
its face. In this Court, the brief for the State of California,
filed at our request, also argues that only Harris, who was
indicted, has standing to challenge the State's law, and that
issuance of the injunction was a violation of a longstanding
judicial policy and of 28 U.S.C. § 2283, which provides:
"A court of the United States may not grant an injunction to
stay proceedings in a State court except as expressly authorized by
Act of Congress, or where necessary in aid of its jurisdiction, or
to protect or effectuate its judgments."
See, e.g., Atlantic Coast Line R. Co. v. Engineers,
398 U. S. 281
398 U. S.
-286 (1970). Without regard to the questions
Page 401 U. S. 41
raised about Whitney v. California, supra,
overruled by Brandenburg v. Ohio, 395 U.
(1969), or the constitutionality of the state
law, we have concluded that the judgment of the District Court,
enjoining appellant Younger from prosecuting under these California
statutes, must be reversed as a violation of the national policy
forbidding federal courts to stay or enjoin pending state court
proceedings except under special circumstances. [Footnote 2
] We express no view about the
circumstances under which federal courts may act when there is no
prosecution pending in state courts at the time the federal
proceeding is begun.
Appellee Harris has been indicted, and was actually being
prosecuted by California for a violation of its Criminal
Syndicalism Act at the time this suit was filed. He thus has an
acute, live controversy with the State and its prosecutor. But none
of the other parties plaintiff in the District Court, Dan, Hirsch,
or Broslawsky, has such a controversy. None has been indicted,
arrested, or even threatened by the prosecutor. About these three,
the three-judge court said:
"Plaintiffs Dan and Hirsch allege that they are members of the
Progressive Labor Party, which advocates change in industrial
ownership and political change, and that they feel inhibited in
Page 401 U. S. 42
the program of their political party through peaceful,
nonviolent means, because of the presence of the Act 'on the
books,' and because of the pending criminal prosecution against
Harris. Plaintiff Broslawsky is a history instructor, and he
alleges that he is uncertain as to whether his normal practice of
teaching his students about the doctrines of Karl Marx and reading
from the Communist Manifesto and other revolutionary works may
subject him to prosecution for violation of the Act."
281 F. Supp. at 509. Whatever right Harris, who is being
prosecuted under the state syndicalism law, may have, Dan, Hirsch,
and Broslawsky cannot share it with him. If these three had alleged
that they would be prosecuted for the conduct they planned to
engage in, and if the District Court had found this allegation to
be true -- either on the admission of the State's district attorney
or on any other evidence -- then a genuine controversy might be
said to exist. But here appellees Dan, Hirsch, and Broslawsky do
not claim that they have ever been threatened with prosecution,
that a prosecution is likely, or even that a prosecution is
remotely possible. They claim the right to bring this suit solely
because, in the language of their complaint, they "feel inhibited."
We do not think this allegation, even if true, is sufficient to
bring the equitable jurisdiction of the federal courts into play to
enjoin a pending state prosecution. A federal lawsuit to stop a
prosecution in a state court is a serious matter. And persons
having no fears of state prosecution except those that are
imaginary or speculative are not to be accepted as appropriate
plaintiffs in such cases. See Golden v. Zwickler,
394 U. S. 103
(1969). Since Harris is actually being prosecuted under the
challenged laws, however, we proceed with him as a proper
Page 401 U. S. 43
Since the beginning of this country's history, Congress has,
subject to few exceptions, manifested a desire to permit state
courts to try state cases free from interference by federal courts.
In 1793, an Act unconditionally provided: "[N]or shall a writ of
injunction be granted to stay proceedings in any court of a state.
. . ." 1 Stat. 335, c. 22, § 5. A comparison of the 1793 Act with
28 U.S.C. § 2283, its present-day successor, graphically
illustrates how few and minor have been the exceptions granted from
the flat, prohibitory language of the old Act. During all this
lapse of years from 1793 to 1970, the statutory exceptions to the
1793 congressional enactment have been only three: (1) "except as
expressly authorized by Act of Congress"; (2) "where necessary in
aid of its jurisdiction"; and (3) "to protect or effectuate its
judgments." In addition, a judicial exception to the longstanding
policy evidenced by the statute has been made where a person about
to be prosecuted in a state court can show that he will, if the
proceeding in the state court is not enjoined, suffer irreparable
damages. See Ex parte Young, 209 U.
The precise reasons for this longstanding public policy against
federal court interference with state court proceedings have never
been specifically identified, but the primary sources of the policy
are plain. One is the basic doctrine of equity jurisprudence that
courts of equity should not act, and particularly should not act to
restrain a criminal prosecution, when the moving party has an
adequate remedy at law and will not suffer irreparable
Page 401 U. S. 44
injury if denied equitable relief. The doctrine may originally
have grown out of circumstances peculiar to the English judicial
system and not applicable in this country, but its fundamental
purpose of restraining equity jurisdiction within narrow limits is
equally important under our Constitution in order to prevent
erosion of the role of the jury and avoid a duplication of legal
proceedings and legal sanctions where a single suit would be
adequate to protect the rights asserted. This underlying reason for
restraining courts of equity from interfering with criminal
prosecutions is reinforced by an even more vital consideration, the
notion of "comity," that is, a proper respect for state functions,
a recognition of the fact that the entire country is made up of a
Union of separate state governments, and a continuance of the
belief that the National Government will fare best if the States
and their institutions are left free to perform their separate
functions in their separate ways. This, perhaps for lack of a
better and clearer way to describe it, is referred to by many as
"Our Federalism," and one familiar with the profound debates that
ushered our Federal Constitution into existence is bound to respect
those who remain loyal to the ideals and dreams of "Our
Federalism." The concept does not mean blind deference to "States'
Rights" any more than it means centralization of control over every
important issue in our National Government and its courts. The
Framers rejected both these courses. What the concept does
represent is a system in which there is sensitivity to the
legitimate interests of both State and National Governments, and in
which the National Government, anxious though it may be to
vindicate and protect federal rights and federal interests, always
endeavors to do so in ways that will not unduly interfere with the
legitimate activities of the States. It should never be forgotten
that this slogan, "Our Federalism," born in the early struggling
Page 401 U. S. 45
our Union of States, occupies a highly important place in our
Nation's history and its future.
This brief discussion should be enough to suggest some of the
reasons why it has been perfectly natural for our cases to repeat
time and time again that the normal thing to do when federal courts
are asked to enjoin pending proceedings in state courts is not to
issue such injunctions. In Fenner v. Boykin, 271 U.
(1926), suit had been brought in the Federal
District Court seeking to enjoin state prosecutions under a
recently enacted state law that allegedly interfered with the free
flow of interstate commerce. The Court, in a unanimous opinion,
made clear that such a suit, even with respect to state criminal
proceedings not yet formally instituted, could be proper only under
very special circumstances:
"Ex parte Young, 209 U. S. 123
, and following
cases have established the doctrine that, when absolutely necessary
for protection of constitutional rights, courts of the United
States have power to enjoin state officers from instituting
criminal actions. But this may not be done except under
extraordinary circumstances where the danger of irreparable loss is
both great and immediate. Ordinarily, there should be no
interference with such officers; primarily, they are charged with
the duty of prosecuting offenders against the laws of the State and
must decide when and how this is to be done. The accused should
first set up and rely upon his defense in the state courts, even
though this involves a challenge of the validity of some statute,
unless it plainly appears that this course would not afford
at 271 U. S.
-244. These principles, made clear in the
case, have been repeatedly followed and reaffirmed
in other cases involving threatened prosecutions. See, e.g.,
295 U. S. S.
Sales Co. v. Dodge, 295 U. S. 89
Beall v. Missouri Pac. R. Co., 312 U. S.
Watson v. Buck, 313 U.
S. 387 (1941);
Williams v. Miller, 317 U.S. 599
Douglas v. City of Jeannette,@ 319 U.
In all of these cases, the Court stressed the importance of
showing irreparable injury, the traditional prerequisite to
obtaining an injunction. In addition, however, the Court also made
clear that, in view of the fundamental policy against federal
interference with state criminal prosecutions, even irreparable
injury is insufficient unless it is "both great and immediate."
Certain types of injury, in particular, the
cost, anxiety, and inconvenience of having to defend against a
single criminal prosecution, could not, by themselves, be
considered "irreparable" in the special legal sense of that term.
Instead, the threat to the plaintiff's federally protected rights
must be one that cannot be eliminated by his defense against a
single criminal prosecution. See, e.g., Ex parte Young,
at 209 U. S.
-147. Thus, in the Buck
at 313 U. S. 400
"Federal injunctions against state criminal statutes, either in
their entirety or with respect to their separate and distinct
prohibitions, are not to be granted as a matter of course, even if
such statutes are unconstitutional."
"No citizen or member of the community is immune from
prosecution, in good faith, for his alleged criminal acts. The
imminence of such a prosecution, even though alleged to be
unauthorized, and, hence, unlawful, is not, alone, ground for
relief in equity which exerts its extraordinary powers only to
prevent irreparable injury to the plaintiff who seeks its aid."
"Beal v. Missouri Pacific Railroad Corp., 312 U. S.
, 312 U. S. 49
Page 401 U. S. 47
And, similarly, in Douglas, supra,
we made clear, after
reaffirming this rule, that:
"It does not appear from the record that petitioners have been
threatened with any injury other than that incidental to every
criminal proceeding brought lawfully and in good faith. . . ."
319 U.S. at 319 U. S.
This is where the law stood when the Court decided
Dombrowski v. Pfister, 380 U. S. 479
(1965), and held that an injunction against the enforcement of
certain state criminal statutes could properly issue under the
circumstances presented in that case. [Footnote 4
] In Dombrowski,
Page 401 U. S. 48
unlike many of the earlier cases denying injunctions, the
complaint made substantial allegations that:
"the threats to enforce the statutes against appellants are not
made with any expectation of securing valid convictions, but rather
are part of a plan to employ arrests, seizures, and threats of
prosecution under color of the statutes to harass appellants and
discourage them and their supporters from asserting and attempting
to vindicate the constitutional rights of Negro citizens of
380 U.S. at 380 U. S. 482
The appellants in Dombrowski
had offered to prove that
their offices had been raided and all their files and records
seized pursuant to search and arrest warrants that were later
summarily vacated by a state judge for lack of probable cause. They
also offered to prove that, despite the state court order quashing
the warrants and suppressing the evidence seized, the prosecutor
was continuing to threaten to initiate new prosecutions of
appellants under the same statutes, was holding public hearings at
which photostatic copies of the illegally seized documents were
being used, and was threatening to use other copies of the
illegally seized documents to obtain grand jury indictments against
the appellants on charges of violating the same statutes. These
circumstances, as viewed by the Court, sufficiently establish the
kind of irreparable injury, above and beyond that associated with
the defense of a single prosecution brought in good faith, that had
always been considered sufficient to justify federal intervention.
See, e.g., Beal, supra,
at 312 U. S. 50
Indeed, after quoting the Court's statement in Douglas
concerning the very restricted circumstances under which an
injunction could be justified, the Court in Dombrowski
went on to say:
"But the allegations in this complaint depict a situation in
which defense of the State's criminal
Page 401 U. S. 49
prosecution will not assure adequate vindication of
constitutional rights. They suggest that a substantial loss of or
impairment of freedoms of expression will occur if appellants must
await the state court's disposition and ultimate review in this
Court of any adverse determination. These allegations, if true,
clearly show irreparable injury."
380 U.S. at 380 U. S.
-486. And the Court made clear that, even under these
circumstances, the District Court issuing the injunction would have
continuing power to lift it at any time and remit the plaintiffs to
the state courts if circumstances warranted. 380 U.S. at
380 U. S. 491
380 U. S. 402
Similarly, in Cameron v. Johnson, 390 U.
(1968), a divided Court denied an injunction
after finding that the record did not establish the necessary bad
faith and harassment; the dissenting Justices themselves stressed
the very limited role to be allowed for federal injunctions against
state criminal prosecutions and differed with the Court only on the
question whether the particular facts of that case were sufficient
to show that the prosecution was brought in bad faith.
It is against the background of these principles that we must
judge the propriety of an injunction under the circumstances of the
present case. Here, a proceeding was already pending in the state
court affording Harris an opportunity to raise his constitutional
claims. There is no suggestion that this single prosecution against
Harris is brought in bad faith, or is only one of a series of
repeated prosecutions to which he will be subjected. In other
words, the injury that Harris faces is solely "that incidental to
every criminal proceeding brought lawfully and in good faith,"
and therefore, under the settled doctrine
we have already described, he is not entitled to equitable relief
"even if such statutes are unconstitutional," Buck,
Page 401 U. S. 50
The District Court, however, thought that the
decision substantially broadened the
availability of injunctions against state criminal prosecutions,
and that, under that decision, the federal courts may give
equitable relief, without regard to any showing of bad faith or
harassment, whenever a state statute is found "on its face" to be
vague or overly broad, in violation of the First Amendment. We
recognize that there are some statements in the Dombrowski
opinion .that would seem to support this argument. But, as we have
already seen, such statements were unnecessary to the decision of
that case, because the Court found that the plaintiffs had alleged
a basis for equitable relief under the long-established standards.
In addition, we do not regard the reasons adduced to support this
position as sufficient to justify such a substantial departure from
the established doctrines regarding the availability of injunctive
relief. It is undoubtedly true, as the Court stated in
"[a] criminal prosecution under a statute regulating expression
usually involves imponderables and contingencies that themselves
may inhibit the full exercise of First Amendment freedoms."
380 U.S. at 380 U. S. 486
But this sort of "chilling effect," as the Court called it, should
not, by itself, justify federal intervention. In the first place,
the chilling effect cannot be satisfactorily eliminated by federal
injunctive relief. In Dombrowski
itself, the Court stated
that the injunction to be issued there could be lifted if the State
obtained an "acceptable limiting construction" from the state
courts. The Court then made clear that, once this was done,
prosecutions could then be brought for conduct occurring before the
narrowing construction was made, and proper convictions could stand
so long as the defendants were not deprived of fair warning. 380
U.S. at 380 U. S. 491
n. 7. The kind of relief granted in Dombrowski
not effectively eliminate uncertainty as to the coverage of the
Page 401 U. S. 51
statute, and leaves most citizens with virtually the same doubts
as before regarding the danger that their conduct might eventually
be subjected to criminal sanctions. The chilling effect can, of
course, be eliminated by an injunction that would prohibit any
prosecution whatever for conduct occurring prior to a satisfactory
rewriting of the statute. But the States would then be stripped of
all power to prosecute even the socially dangerous and
constitutionally unprotected conduct that had been covered by the
statute, until a new statute could be passed by the state
legislature and approved by the federal courts in potentially
lengthy trial and appellate proceedings. Thus, in
itself, the Court carefully reaffirmed the
principle that, even in the direct prosecution in the State's own
courts, a valid narrowing construction can be applied to conduct
occurring prior to the date when the narrowing construction was
made, in the absence of fair warning problems.
Moreover, the existence of a "chilling effect," even in the area
of First Amendment rights, has never been considered a sufficient
basis, in and of itself, for prohibiting state action. Where a
statute does not directly abridge free speech, but -- while
regulating a subject within the State's power -- tends to have the
incidental effect of inhibiting First Amendment rights, it is well
settled that the statute can be upheld if the effect on speech is
minor in relation to the need for control of the conduct and the
lack of alternative means for doing so. Schneider v.
State, 308 U. S. 147
(1939); Cantwell v. Connecticut, 310 U.
(1940); Mine Workers v. Illinois Bar
Assn., 389 U. S. 217
(1967). Just as the incidental "chilling effect" of such statutes
does not automatically render them unconstitutional, so the
chilling effect that admittedly can result from the very existence
of certain laws on the statute books does not, in itself, justify
prohibiting the State from carrying out the important
Page 401 U. S. 52
and necessary task of enforcing these laws against socially
harmful conduct that the State believes in good faith to be
punishable under its laws and the Constitution.
Beyond all this is another, more basic consideration. Procedures
for testing the constitutionality of a statute "on its face" in the
manner apparently contemplated by Dombrowski,
and for then
enjoining all action to enforce the statute until the State can
obtain court approval for a modified version, are fundamentally at
odds with the function of the federal courts in our constitutional
plan. The power and duty of the judiciary to declare laws
unconstitutional is, in the final analysis, derived from its
responsibility for resolving concrete disputes brought before the
courts for decision; a statute apparently governing a dispute
cannot be applied by judges, consistently with their obligations
under the Supremacy Clause, when such an application of the statute
would conflict with the Constitution. Marbury v.
1 Cranch 137 (1803). But this vital
responsibility, broad as it is, does not amount to an unlimited
power to survey the statute books and pass judgment on laws before
the courts are called upon to enforce them. Ever since the
Constitutional Convention rejected a proposal for having members of
the Supreme Court render advice concerning pending legislation,
] it has been clear
that, even when suits of this kind involve a "case or controversy"
sufficient to satisfy the requirements of Article III of the
Constitution, the task of analyzing a proposed statute, pinpointing
its deficiencies, and requiring correction of these deficiencies
before the statute is put into effect is rarely, if ever, an
appropriate task for the judiciary.
Page 401 U. S. 53
The combination of the relative remoteness of the controversy,
the impact on the legislative process of the relief sought, and,
above all, the speculative and amorphous nature of the required
line-by-line analysis of detailed statutes, see, e.g., Landry
v. Daley, 280 F.
(ND Ill.1968), rev'd sub nom. Boyle v. Landry,
p. 401 U. S. 77
ordinarily results in a kind of case that is wholly unsatisfactory
for deciding constitutional questions, whichever way they might be
decided. In light of this fundamental conception of the Framers as
to the proper place of the federal courts in the governmental
processes of passing and enforcing laws, it can seldom be
appropriate for these courts to exercise any such power of prior
approval or veto over the legislative process.
For these reasons, fundamental not only to our federal system
but also to the basic functions of the Judicial Branch of the
National Government under our Constitution, we hold that the
decision should not be regarded as having upset
the settled doctrines that have always confined very narrowly the
availability of injunctive relief against state criminal
prosecutions. We do not think that opinion stands for the
proposition that a federal court can properly enjoin enforcement of
a statute solely on the basis of a showing that the statute, "on
its face," abridges First Amendment rights. There may, of course,
be extraordinary circumstances in which the necessary irreparable
injury can be shown even in the absence of the usual prerequisites
of bad faith and harassment. For example, as long ago as the
"It is of course conceivable that a statute might be flagrantly
and patently violative of express constitutional prohibitions in
every clause, sentence and paragraph, and in whatever manner and
Page 401 U. S. 54
whomever an effort might be made to apply it."
313 U.S. at 313 U. S. 402
Other unusual situations calling for federal intervention might
also arise, but there is no point in our attempting now to specify
what they might be. It is sufficient for purposes of the present
case to hold, as we do, that the possible unconstitutionality of a
statute "on its face" does not, in itself, justify an injunction
against good faith attempts to enforce it, and that appellee Harris
has failed to make any showing of bad faith, harassment, or any
other unusual circumstance that would call for equitable relief.
Because our holding rests on the absence of the factors necessary
under equitable principles to justify federal intervention, we have
no occasion to consider whether 28 U.S.C. § 2283, which prohibits
an injunction against state court proceedings "except as expressly
authorized by Act of Congress" would, in and of itself, be
controlling under the circumstances of this case.
The judgment of the District Court is reversed, and the case is
remanded for further proceedings not inconsistent with this
"§ 11400. Definition
"'Criminal syndicalism' as used in this article means any
doctrine or precept advocating, teaching or aiding and abetting the
commission of crime, sabotage (which word is hereby defined as
meaning willful and malicious physical damage or injury to physical
property), or unlawful acts of force and violence or unlawful
methods of terrorism as a means of accomplishing a change in
industrial ownership or control, or effecting any political
"§ 11401. Offense; punishment
"Any person who: "
"1. By spoken or written words or personal conduct advocates,
teaches or aids and abets criminal syndicalism or the duty,
necessity or propriety of committing crime, sabotage, violence or
any unlawful method of terrorism as a means of accomplishing a
change in industrial ownership or control, or effecting any
political change; or"
"2. Wilfully and deliberately by spoken or written words
justifies or attempt to justify criminal syndicalism or the
commission or attempt to commit crime, sabotage, violence or
unlawful methods of terrorism with intent to approve, advocate or
further the doctrine of criminal syndicalism; or"
"3. Prints, publishes, edits, issues or circulates or publicly
displays any book, paper, pamphlet, document, poster or written or
printed matter in any other form, containing or carrying written or
printed advocacy, teaching, or aid and abetment of, or advising,
criminal syndicalism; or"
"4. Organizes or assists in organizing, or is or knowingly
becomes a member of, any organization, society, group or assemblage
of persons organized or assembled to advocate, teach or aid and
abet criminal syndicalism; or"
"5. Wilfully by personal act or conduct, practices or commits
any act advised, advocated, taught or aided and abetted by the
doctrine or precept of criminal syndicalism, with intent to
accomplish a change in industrial ownership or control, or
effecting any political change;"
"is guilty of a felony and punishable by imprisonment in the
state prison not less than one nor more than 14 years."
Appellees did not explicitly ask for a declaratory judgment in
their complaint. They did, however, ask the District Court to grant
"such other and further relief as to the Court may seem just and
proper," and the District Court, in fact, granted a declaratory
judgment. For the reasons stated in our opinion today in
Samuels v. Mackell, post,
p. 401 U. S. 66
hold that declaratory relief is also improper when a prosecution
involving the challenged statute is pending in state court at the
time the federal suit is initiated.
For an interesting discussion of the history of this
congressional policy up to 1941, see Toucey v. New York Life
Ins. Co., 314 U. S. 118
Neither the cases dealing with standing to raise claims of
vagueness or overbreadth, e.g., Thornhill v. Alabama,
310 U. S. 88
(1940), nor the loyalty oath cases, e.g., Baggett v.
Bullitt, 377 U. S. 360
(1964), changed the basic principles governing the propriety of
injunctions against state criminal prosecutions. In the standing
cases, we allowed attacks on overly broad or vague statutes in the
absence of any showing that the defendant's conduct could not be
regulated by some properly drawn statute. But in each of these
cases, the statute was not merely vague or overly broad "on its
face"; the statute was held to be vague or overly broad as
construed and applied to a particular defendant in a particular
case. If the statute had been too vague as written, but
sufficiently narrow as applied, prosecutions and convictions under
it would ordinarily have been permissible. See Dombrowski,
at 380 U. S. 491
and similar cases, we enjoined state
officials from discharging employees who failed to take certain
loyalty oaths. We held that the States were without power to exact
the promises involved, with their vague and uncertain content
concerning advocacy and political association, as a condition of
employment. Apart from the fact that any plaintiff discharged for
exercising his constitutional right to refuse to take the oath
would have had no adequate remedy at law, the relief sought was of
course the kind that raises no special problem -- an injunction
against allegedly unconstitutional state action (discharging the
employees) that is not part of a criminal prosecution.
1 The Record of the Federal Convention of 1787, p.
21 (Farrand ed. 1911).
MR. JUSTICE STEWART, with whom MR. JUSTICE HARLAN joins,
The questions the Court decides today are important ones.
Perhaps as important, however, is a recognition of the areas into
which today's holdings do not necessarily extend. In all of these
cases, the Court deals only
Page 401 U. S. 55
with the proper policy to be followed by a federal court when
asked to intervene by injunction or declaratory judgment in a
criminal prosecution which is contemporaneously pending in a state
In basing its decisions on policy grounds, the Court does not
reach any questions concerning the independent force of the federal
anti-injunction statute, 28 U.S.C. § 2283. Thus, we do not decide
whether the word "injunction" in § 2283 should be interpreted to
include a declaratory judgment, or whether an injunction to stay
proceedings in a state court is "expressly authorized" by § 1 of
the Civil Rights Act of 1871, now 42 U.S.C. § 1983. [Footnote 2/1
] And since all these cases
involve state criminal prosecutions, we do not deal with the
considerations that should govern a federal court when it is asked
to intervene in state civil proceedings, where, for various
reasons, the balance might be struck differently. [Footnote 2/2
] Finally, the Court today does not
resolve the problems involved when a federal court is asked to give
injunctive or declaratory relief from future
Page 401 U. S. 56
The Court confines itself to deciding the policy considerations
that, in our federal system, must prevail when federal courts are
asked to interfere with pending state prosecutions. Within this
area, we hold that a federal court must not, save in exceptional
and extremely limited circumstances, intervene by way of either
injunction or declaration in an existing state criminal
prosecution. [Footnote 2/3
circumstances exist only when there is a threat of irreparable
injury "both great and immediate." A threat of this nature might be
shown if the state criminal statute in question were patently and
flagrantly unconstitutional on its face, ante
401 U.S. 53
Evers v. Dwyer, 358 U. S. 202
if there has been bad faith and harassment -- official lawlessness
-- in a statute's enforcement, ante
at 401 U. S. 47
In such circumstances, the reasons of policy for deferring to state
adjudication are outweighed by the injury flowing from the very
bringing of the state proceedings, by the perversion of the very
process that is supposed to provide vindication, and by the need
for speedy and effective action to protect federal rights. Cf.
Georgia v. Rachel, 384 U. S. 780
* [This opinion applies also to No. 7, Samuels et al. v.
Mackell et al.,
and No. 9, Fernandez v. Mackell et al.,
p. 401 U. S. 66
41, Dyson et al. v. Stein, post,
p. 401 U. S. 200
No. 83, Byrne et al. v. Karalexis et al., post,
401 U. S.
See also Cameron v. Johnson, 390 U.
, 390 U. S.
-614, n. 3; Dombrowski v. Pfister,
380 U. S. 479
380 U. S. 484
Courts of equity have traditionally shown greater reluctance to
intervene in criminal prosecutions than in civil cases. See
at 401 U. S. 43
Douglas v. City of Jeannette, 319 U.
, 319 U. S.
-164. The offense to state interests is likely to be
less in a civil proceeding. A State's decision to classify conduct
as criminal provides some indication of the importance it has
ascribed to prompt and unencumbered enforcement of its law. By
contrast, the State might not even be a party in a proceeding under
a civil statute.
Cf.Law Students Civil Rights Research Council v. Wadmond,
p. 401 U. S. 154
Wisconsin v. Constantineau, 400 U.
; Rosado v. Wyman, 397 U.
These considerations would not, to be sure, support any
distinction between civil and criminal proceedings should the ban
of 28 U.S.C. § 2283, which makes no such distinction, be held
unaffected by 42 U.S.C.§ 1983.
The negative pregnant in this sentence -- that a federal court
may, as a matter of policy, intervene when such "exceptional and
extremely limited circumstances" are found -- is subject to any
further limitations that may be placed on such intervention by 28
U.S.C. § 2283.
MR. JUSTICE BRENNAN, with whom MR. JUSTICE WHITE and MR. JUSTICE
MARSHALL join, concurring in the result.
I agree that the judgment of the District Court should be
reversed. Appellee Harris had been indicted for violations of the
California Criminal Syndicalism Act before he sued in federal
court. He has not alleged that the prosecution was brought in bad
faith to harass him. His constitutional contentions may be
Page 401 U. S. 57
in the state criminal proceeding, and federal intervention at
his instance was therefore improper.*
Appellees Hirsch and Dan have alleged that they "feel inhibited"
by the statute and the prosecution of Harris from advocating the
program of the Progressive Labor Party. Appellee Broslawsky has
alleged that he "is uncertain" whether, as an instructor in college
history, he can, under the statute, give instruction relating to
the Communist Manifesto and similar revolutionary works. None of
these appellees has stated any ground for a reasonable expectation
that he will actually be prosecuted under the statute for taking
the actions contemplated. The court below expressly declined to
rely on any finding
"that . . . Dan, Hirsch or Broslawsky stand[s] in any danger of
prosecution by the [State], because of the activities that they
ascribed to themselves in the complaint. . . . "
Page 401 U. S. 58
, 516. It is true, as the court below pointed out,
that "[w]ell-intentioned prosecutors and judicial safeguards do not
neutralize the vice of a vague law," Baggett v. Bullitt,
377 U. S. 360
377 U. S. 373
(1964), but still there must be a live controversy under Art. III.
No threats of prosecution of these appellees are alleged. Although
Dan and Hirsch have alleged that they desire to advocate doctrines
of the Progressive Labor Party, they have not asserted that their
advocacy will be of the same genre as that which brought on the
prosecution of Harris. In short, there is no reason to think that
California has any ripe controversy with them. See Golden v.
Zwickler, 394 U. S. 103
(1969); Perez v. Ledesma, post,
p. 401 U. S. 93
(BRENNAN, J., concurring and dissenting).
* The District Court erroneously interpreted Zwickler v.
Koota, 389 U. S. 241
(1967), as authorizing federal court consideration of a
constitutional claim at issue in a pending state proceeding,
whether or not the federal court plaintiff had presented his claim
to the state court. It suffices here to note that, in
no state proceeding was pending at the time
jurisdiction attached in the federal court. The court below also
thought it significant that appellee Harris had raised his
constitutional claim in the state courts in a motion to dismiss the
indictment and in petitions in the state appellate courts for a
writ of prohibition. It was questioned at oral argument whether
constitutional issues could properly be raised by the procedures
invoked by Harris, and it was suggested that the denial of Harris'
motions did not necessarily involve rejection of his constitutional
claims. However, even if the California courts had at that
interlocutory stage rejected Harris' constitutional arguments, that
rejection would not have provided a justification for intervening
by the District Court. Harris could have sought direct review of
that rejection of his constitutional claims, or he could have
renewed the claims in requests for instructions and on direct
review of any conviction in the state courts and in this Court.
These were the proper modes for presentation and these the proper
forums for consideration of the constitutional issues.
MR. JUSTICE DOUGLAS, dissenting.*
The fact that we are in a period of history when enormous
extrajudicial sanctions are imposed on those who assert their First
Amendment rights in unpopular causes emphasizes the wisdom of
Dombrowski v. Pfister, 380 U. S. 479
There, we recognized that, in times of repression, when interests
with powerful spokesmen generate symbolic pogroms against
nonconformists, the federal judiciary, charged by Congress with
special vigilance for protection of civil rights, has special
responsibilities to prevent an erosion of the individual's
represents an exception to the general rule
that federal courts should not interfere with state criminal
prosecutions. The exception does not arise merely because
prosecutions are threatened to which the First Amendment will be
the proffered defense. Dombrowski
governs statutes which
are a blunderbuss by
Page 401 U. S. 59
themselves or when used en masse
-- those that have an
"If the rule were otherwise, the contours of regulation would
have to be hammered out case by case -- and tested only by those
hardy enough to risk criminal prosecution to determine the proper
scope of regulation."
at 380 U. S. 487
It was in the context of overbroad state statutes that we spoke of
the "chilling effect upon the exercise of First Amendment rights"
caused by state prosecutions. Ibid.
As respects overbroad statutes, we said at least as early as
1940 that, when dealing with First Amendment rights, we would
insist on statutes "narrowly drawn to prevent the supposed evil."
Cantwell v. Connecticut, 310 U. S. 296
310 U. S.
The special circumstances when federal intervention in a state
criminal proceeding is permissible are not restricted to bad faith
on the part of state officials or the threat of multiple
prosecutions. They also exist where, for any reason, the state
statute being enforced is unconstitutional on its face. As Mr.
Justice Butler, writing for the Court, said in Terrace v.
Thompson, 263 U. S. 197
263 U. S.
"Equity jurisdiction will be exercised to enjoin the threatened
enforcement of a state law which contravenes the Federal
Constitution wherever it is essential in order effectually to
protect property rights and the rights of persons against injuries
otherwise irremediable; and, in such a case, a person, who as an
officer of the State is clothed with the duty of enforcing its
laws, and who threatens and is about to commence proceedings,
either civil or criminal, to enforce such a law against parties
affected may be enjoined from such action by a federal court of
decision was only another facet of the
Page 401 U. S. 60
"criminal syndicalism" is defined so
broadly as to jeopardize "teaching" that socialism is preferable to
Harris' "crime" was distributing leaflets advocating change in
industrial ownership through political action. The statute under
which he was indicted was the one involved in Whitney v.
California, 274 U. S. 357
decision we overruled in Brandenburg v. Ohio, 395 U.
, 395 U. S. 449
If the "advocacy" which Harris used was an attempt at persuasion
through the use of bullets, bombs, and arson, we would have a
different case. But Harris is charged only with distributing
leaflets advocating political action toward his objective. He tried
unsuccessfully to have the state court dismiss the indictment on
constitutional grounds. He resorted to the state appellate court
for writs of prohibition to prevent the trial, but to no avail. He
went to the federal court as a matter of last resort in an effort
to keep this unconstitutional trial from being saddled on him.
The "anti-injunction" statute, 28 U.S.C. § 2283, [Footnote 3/2
] is not a bar to a federal
injunction under these circumstances. That statute was adopted in
1793, § 6, 1 Stat. 335, [Footnote
] and reflected the early view of the proper role of the
federal courts within American federalism.
Page 401 U. S. 61
Whatever the balance of the pressures of localism and
nationalism prior to the Civil War, they were fundamentally altered
by the war. The Civil War Amendments made civil rights a national
concern. Those Amendments, especially § 5 of the Fourteenth
Amendment, cemented the change in American federalism brought on by
the war. Congress immediately commenced to use its new powers to
pass legislation. Just as the first Judiciary Act, 1 Stat. 73, and
the "anti-injunction" statute represented the early views of
American federalism, the Reconstruction statutes, including the
enlargement of federal jurisdiction, [Footnote 3/4
] represent a later view of American
One of the jurisdiction-enlarging statutes passed during
Reconstruction was the Act of April 20, 1871. 17
Page 401 U. S. 62
Stat. 13. Beyond its jurisdictional provision that statute, now
codified as 42 U.S.C. § 1983, provides:
"Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory, subjects,
or causes to be subjected, any citizen of the United States or
other person within the jurisdiction thereof to the deprivation
of any rights, privileges, or immunities secured by the
and laws, shall be liable to the party injured in
an action at law, suit in equity,
or other proper
proceeding for redress."
A state law enforcement officer is someone acting under "color
of law" even though he may be misusing his authority. Monroe v.
Pape, 365 U. S. 167
prosecution under a patently unconstitutional statute is a
"deprivation of . . . rights, privileges, or immunities secured by
the Constitution." "Suit[s] in equity" obviously includes
injunctions. [Footnote 3/5
I hold to the view that § 1983 is included in the "expressly
authorized" exception to § 2283, [Footnote 3/6
] a point not raised or considered in the
much-discussed Douglas v. City of Jeannette, 319 U.
. There is no more good reason for allowing a
general statute dealing with federalism passed at the end of the
18th century to control another statute also dealing with
federalism, passed almost 80 years later, than to conclude that the
early concepts of federalism were not changed by the Civil War.
Page 401 U. S. 63
That was the view of Judge Will in the Boyle
Landry v. Daley, 288 F.
, 223. In speaking of the Civil War Amendments as "a
constitutional revolution in the nature of American federalism," he
"This revolution, in turn, represents a historical judgment. It
emphasizes the overwhelming concern of the Reconstruction
Congresses for the protection of the newly won rights of freedmen.
By interposing the federal government between the states and their
inhabitants, these Congresses sought to avoid the risk of
nullification of these rights by the states. With the subsequent
passage of the Act of 1871, Congress sought to implement this plan
by expanding the federal judicial power. Section 1983 is,
therefore, not only an expression of the importance of protecting
federal rights from infringement by the states, but also, where
necessary, the desire to place the national government between the
state and its citizens."
the statute makes "intimidation" to "commit
any criminal offense" an offense. The three-judge court said:
"It . . makes criminal threats such as the following: (1)
threats by dissentient groups to engage in disorderly conduct,
threats by residents of a high-crime neighborhood to carry
concealed weapons for their own protection, and threats by mothers
to block a dangerous state highway to demonstrate the need for
increased safety measures. Indeed, the phrase 'commit any criminal
offense' is so broad as to include threats to commit misdemeanors
punishable by fine only. These evils are not so substantial that
the state's interest in prohibiting the threat of them outweighs
the public interest in giving legitimate political discussion a
Landry v. Daley, 280 F.
Page 401 U. S. 64
Landry and others brought a class action challenging the
constitutional validity of five sections of the Illinois statutes.
They alleged arrests under all but two of the challenged sections.
Just before trial, they abandoned their challenge of two of the
five sections. The District Court held one of the remaining
sections constitutional, and the "mob action" and "intimidation"
sections unconstitutional. Appellants have not appealed the
determination that the "mob action" section of the Illinois
statutes is unconstitutional.
The Court dismisses this case because there is no showing of
irreparable injury on what it describes as "flimsy allegations."
at 401 U. S. 81
The Court states:
"There is nothing contained in the allegations of the complaint
from which one could infer that any one or more of the citizens who
brought this suit is in any jeopardy of suffering irreparable
injury if the State is left free to prosecute under the
intimidation statute in the normal manner."
Landry and his associates, however, allege that
appellants are using the intimidation section along with several
other sections to harass them, not to prosecute them in the normal
manner. They allege that appellants are arresting them without
warrants or probable cause, and detaining them on excessive bail.
They allege that the arrests are made during peaceful
demonstrations and without any expectation of securing valid
convictions. In sum, Landry and his group allege that the
"intimidation" section is one of several statutes which appellants
are using en masse
as part of a plan to harass them and
discourage their exercise of their First Amendment rights. There is
thus a lively and existing case or controversy concerning First
Amendment rights. And I believe that the federal court acted in our
finest tradition when it issued the stay.
Page 401 U. S. 65
As the standards of certainty in statutes containing criminal
sanctions are higher than those in statutes containing civil
sanctions, so are the standards of certainty touching on freedom of
expression higher than those in other areas. Winters v. New
York, 333 U. S. 507
333 U. S.
"There must be ascertainable standards of guilt. Men of common
intelligence cannot be required to guess at the meaning of the
enactment. The vagueness may be from uncertainty in regard to
persons within the scope of the act . . . or in regard to the
applicable tests to ascertain guilt."
Where freedom of expression is at stake, these requirements must
be more sedulously enforced.
there is a prosecution under an
unconstitutional statute, and relief is denied. In Boyle,
there is harassment, but, as yet, no prosecution. Allegations of a
prosecution or harassment under facially unconstitutional statutes
should be sufficient for the exercise of federal equity powers.
and 42 U.S.C. § 1983 indicate why, in
federal intervention against enforcement of the
state laws is appropriate. The case of Younger
stronger. There, the state statute challenged is the prototype of
the one we held unconstitutional in Brandenburg v. Ohio,
The eternal temptation, of course, has been to arrest the
speaker, rather than to correct the conditions about which he
complains. I see no reason why these appellees should be made to
walk the treacherous ground of these statutes. They, like other
citizens, need the umbrella of the First Amendment as they study,
analyze, discuss, and debate the troubles of these days. When
criminal prosecutions can be leveled against them because they
express unpopular views, the society of the dialogue is in
* [This opinion also applies to No. 4, Boyle, Judge, et al.
v. Landry et al., post,
p. 401 U. S. 77
Linde, "Clear and Present Danger" Reexamined:
Dissonance in the Brandenburg
Concerto, 22 Stan.L.Rev.
"A court of the United States may not grant an injunction to
stay proceedings in a State court except as expressly
authorized by Act of Congress,
or where necessary in aid of
its jurisdiction, or to protect or effectuate its judgments."
In its initial form, the "anti-injunction" Act provided: "[N]or
shall a writ of injunction be granted [by any court of the United
States] to stay proceedings in any court of a state." There were no
exceptions. In 1874, it was subsequently modified by an insertion
of the Revisers to read:
"The writ of injunction shall not be granted by any court of the
United States to stay proceedings in any court of a State, except
in cases where such injunction may be authorized by any law
relating to proceedings in bankruptcy."
Rev.Stat. § 720.
In Toucey v. New York Life Ins. Co., 314 U.
, 314 U. S.
-134, in discussing the statutory exceptions to the
"anti-injunction" Act, we noted that, while only bankruptcy was the
explicit exception, there were others. (1) The "Removal Acts
qualify pro tanto
the Act of 1793." (2) The Act of 1851
limiting shipowners' liability "[b]eing a "subsequent statute" to
the Act of 1793 . . . , operates as an implied legislative
amendment to it." We also added (3) the Interpleader Act of 1926
and (4) the Frazier-Lemke Act, 47 Stat. 1473. Toucey
limited a line of cases dealing with nonstatutory exceptions to the
"anti-injunction" Act. Shortly thereafter, the current language of
§ 2283 was written into the Judicial Code. The Reviser's Note
states: "[T]he revised section restores the basic law as generally
understood and interpreted prior to the Toucey
recognize implied legislative exceptions to the "anti-injunction"
Act. See Porter v. Dicken, 328 U.
; Leiter Minerals v. United States,
352 U. S. 220
What is now 28 U.S.C. § 1343(3) was added in 1871, 17 Stat. 13,
and the federal question jurisdiction of 28 U.S.C. § 1331 was added
in 1875. 18 Stat. 470.
We have already held that § 1983 requires no exhaustion of state
remedies. McNeese v. Board of Education, 373 U.
In accord with the view are Honey v. Goodman,
333 (CA6), and Cooper v. Hutchinson,
184 F.2d 119 (CA3).
Opposed are Goss v. Illinois,
312 F.2d 257 (CA7), and
Baines v. City of Danville,
337 F.2d 579 (CA4).
Maraist, Federal Injunctive Relief Against
State Court Proceedings: The Significance of Dombrowski,
48 Tex.L.Rev. 535, 591 et seq.