Three corporations (M & L, Salem, and Tim-Rob), on August 9,
1973, filed a complaint in District Court, seeking a temporary
restraining order, preliminary injunction, and declaratory relief,
against Doran, a law enforcement official, claiming that a North
Hempstead, N.Y., ordinance proscribing topless dancing, which the
corporations had provided as entertainment in their bars, violated
their First and Fourteenth Amendment rights. The District Court
denied the prayer for a temporary restraining order
instanter, and set the motion for a preliminary injunction
for hearing on August 22. On August 10, M & L, alone of the
three corporations, which had theretofore complied with the
ordinance, resumed topless dancing, whereupon it was served with
criminal summonses. Thereafter, the District Court issued a
preliminary injunction against enforcement of the ordinance against
the corporations "pending the final determination of this action."
The Court of Appeals affirmed, holding that the "ordinance would
have to fall" and rejecting Doran's claim that the District Court
should have dismissed the complaint on the authority of
Younger
v. Harris, 401 U. S. 37, and
companion cases, which it concluded did not bar relief as to Salem
and Tim-Rob because there had been no prosecution against them
under the ordinance. A different result for M & L was not
deemed warranted in view of the interests of avoiding contradictory
outcomes, of conserving judicial energy, and of having a clear-cut
method for determining when federal courts should defer to state
prosecutions. Doran appealed under 28 U.S.C. § 1254(2), which gives
this Court appellate jurisdiction at the behest of a party relying
on a state statute held unconstitutional by a court of appeals.
Held:
1. The issues, which were neither briefed nor argued, whether §
1254(2) applies to a review of the affirmance of a preliminary
injunction or is confined to review of a final judgment, and
whether the Court of Appeals, in fact, held the ordinance
unconstitutional, need not be resolved, since this Court has
certiorari jurisdiction under 28 U.S.C. § 2103, under which this
matter can be reviewed. P.
422 U. S. 927.
Page 422 U. S. 923
2. The question of entitlement to relief in the light of
Younger v. Harris, supra, and companion cases, should be
considered as to each corporation separately, and not in the light
of contradictory outcomes and other factors relied upon by the
Court of Appeals when it lumped the three plaintiffs together. Pp.
422 U. S.
927-929.
3.
Younger squarely bars injunctive relief, and
Samuels v. Mackell, 401 U. S. 66, bars
declaratory relief for M & L in view of the fact that, when the
criminal summonses were issued on the days immediately following
the filing of the federal complaint, the federal litigation was in
an embryonic stage, and no contested matter had been decided. P.
422 U. S.
929.
4. Salem and Tim-Rob, against whom no criminal proceedings were
pending, were not subject to
Younger's restrictions in
seeking declaratory relief.
Steffel v. Thompson,
415 U. S. 452.
Those two corporations could also seek preliminary injunctive
relief without regard to
Younger's restrictions, since,
prior to a final judgment, a declaratory remedy cannot afford
relief comparable to a preliminary injunction. Pp.
422 U. S.
930-931.
5. In the circumstances of this case and in the light of
existing case law, the District Court did not abuse its discretion
in granting preliminary injunctive relief to Salem and Tim-Rob. Pp.
422 U. S.
931-934.
(a) The District Court was entitled to conclude that Salem and
Tim-Rob satisfied one of the two traditional requirements for
securing a preliminary injunction,
viz., showing
irreparable injury, because they made uncontested allegations that,
absent such relief, they would suffer a substantial business loss,
and perhaps even bankruptcy. Pp.
422 U. S.
931-932.
(b) The District Court was also entitled to conclude that those
corporations satisfied the other traditional requirement for
interim relief by showing a likelihood that they would prevail on
the merits, since they were,
inter alia, challenging (and
had standing to challenge,
Grayned v. City of Rockford,
408 U. S. 104,
408 U. S. 115)
a "topless" ordinance as being unconstitutionally overbroad in its
application to protected activities at places that do not serve
liquor as well as to places that do.
See California v.
LaRue, 409 U. S. 109,
409 U. S. 118.
Pp.
422 U. S.
932-934.
Appeal dismissed and certiorari granted; 501 F.2d 18, reversed
as to M & L, and affirmed as to Salem and Tim-Rob.
REHNQUIST, J., delivered the opinion of the Court, in which
BURGER, C.J., and BRENNAN, STEWART, WHITE, MARSHALL, BLACKMUN,
Page 422 U. S. 924
and POWELL, JJ., joined. DOUGLAS, J., filed an opinion
concurring in the judgment in part and dissenting in part,
post, p.
422 U. S.
934.
MR. JUSTICE REHNQUIST delivered the opinion of the Court.
Appellant is a town attorney in Nassau County, N.Y. who, along
with other local law enforcement officials, was preliminarily
enjoined by the United States District Court for the Eastern
District of New York from enforcing a local ordinance of the town
of North Hempstead.
Salem Inn, Inc. v.
Frank, 364 F.
Supp. 478 (1973),
aff'd, 501 F.2d 18 (CA2 1974). In
addition to defending the ordinance on the merits, he contends that
the complaint should have been dismissed on the authority of
Younger v. Harris, 401 U. S. 37
(1971), and its companion cases.
Appellees are three corporations which operate bars at various
locations within the town. Prior to enactment of the ordinance in
question, each provided topless dancing as entertainment for its
customers. On July 17, 1973, the town enacted Local Law No. 1-1973,
an ordinance making it unlawful for bar owners and others to permit
waitresses, barmaids, and entertainers to appear in their
establishments with breasts uncovered or so thinly draped as to
appear uncovered. Appellees complied with the ordinance by clothing
their dancers in bikini tops, but, on August 9, 1973, brought this
action in the District Court under 42 U.S.C. § 1983. They alleged
that the ordinance violated their rights under the First and
Fourteenth Amendments to the United States Constitution. Their
pleadings sought a temporary restraining
Page 422 U. S. 925
order, a preliminary injunction, and declaratory relief. The
prayer for a temporary restraining order was denied
instanter, but the motion for a preliminary injunction was
set for a hearing on August 22, 1973.
On August 10, the day after the appellees' complaint was filed,
and their application for a temporary restraining order denied, one
of them, M & L Restaurant, Inc., resumed its briefly suspended
presentation of topless dancing. On that day, and each of the three
succeeding days, M & L and its topless dancers were served with
criminal summonses based on violation of the ordinance. [
Footnote 1] These summonses were
returnable before the Nassau County Court on September 13, 1973.
The other two appellees, Salem Inn, Inc., and Tim-Rob Bar, Inc.,
did not resume the presentation of topless entertainment in their
bars until after the District Court issued its preliminary
injunction.
On September 5, 1973, appellant filed an answer which alleged
that a criminal prosecution had been instituted against at least
one of the appellees; the District Court was urged to "refuse to
exercise jurisdiction" and to dismiss the complaint. App. 33.
On September 6, 1973, on the basis of oral argument and
memoranda of law, the District Court entered an opinion and order
in which it
"[found] that (1) Local Law No. 1-1973 of the Town of North
Hempstead is on its face violative of plaintiffs' First Amendment
rights in that it prohibits across the board nonobscene conduct in
the form of topless dancing, and (2) that the daily penalty of $500
for each violation of the ordinance, the prior state court decision
validating a similar ordinance,
Page 422 U. S. 926
the overbreadth of the ordinance, and the potential harm to
plaintiffs' business by its enforcement justify federal
intervention and injunctive relief."
364 F. Supp. at 483. The court concluded by enjoining
appellant
"pending the final determination of this action . . . from
prosecuting the plaintiffs for any violation of Local Law No.
1-1973 . . . or in any way interfering with their activities which
may be prohibited by the text of said Local Law."
Ibid. The court did address appellant's
Younger contention, but held that the pending prosecution
against M & L did not affect the availability of injunctive
relief to Salem and Tim-Rob. As for M & L, it concluded that,
if federal relief were granted to two of the appellees, "it would
be anomalous" not to extend it to M & L as well.
Id.
at 482.
The Court of Appeals for the Second Circuit affirmed by a
divided vote. It held that the "ordinance would have to fall," 501
F.2d at 21, and that the claim of deprivation of constitutional
rights and diminution of business warranted the issuance of a
preliminary injunction. The Court of Appeals rejected appellant's
claim that the District Court ought to have dismissed appellees'
complaint on the authority of
Younger v. Harris, supra,
and its companion cases. As to Salem and Tim-Rob,
Younger
did not present a bar because there had at no time been a pending
prosecution against them under the ordinance
As for M & L, the court thought that it posed "a slightly
different problem," 501 F.2d at 22, since the state prosecution was
begun only one day after the filing of appellees' complaint in the
District Court. The court recognized that this situation was not
squarely covered by either
Younger or
Steffel v.
Thompson, 415 U. S. 452
(1974), but concluded that the interests of avoiding contradictory
outcomes, of conservation of judicial energy, and of a clear-cut
method for determining when federal
Page 422 U. S. 927
courts should defer to state prosecutions, all militated in
favor of granting relief to all three appellees.
We deal first with a preliminary jurisdictional matter. This
appeal was taken under 28 U.S.C. §'1254(2), which provides this
Court with appellate jurisdiction at the behest of a party relying
on a state statute held unconstitutional by a court of appeals.
[
Footnote 2] There is
authority, questioned but never put to rest, that § 1254(2) is
available only when review is sought of a final judgment.
Slaker v. O'Connor, 278 U. S. 188
(1929);
South Carolina Electric & Gas Co. v. Flemming,
351 U.S. 901 (1956).
But see Chicago v. Atchison, T. & S.
F. R. Co., 357 U. S. 77,
357 U. S. 82 83
(1958). The present appeal, however, seeks review of the affirmance
of a preliminary injunction. We also are less than completely
certain that the Court of Appeals did, in fact, hold Local Law
1-1973 to be unconstitutional, since it considered the merits only
for the purpose of ruling on the propriety of preliminary
injunctive relief. We need not resolve these issues, which have
neither been briefed nor argued, because we, in any event, have
certiorari jurisdiction under 28 U.S.C. § 2103. As we have
previously done in an identical situation,
El Paso v.
Simmons, 379 U. S. 497,
379 U. S.
502-503 (1965), we dismiss the appeal and, treating the
papers as a petition for certiorari, grant the writ of
certiorari.
Turning to the
Younger issues raised by petitioner, we
are faced with the necessity of determining whether the holdings of
Younger, supra, Steffel, supra, and
Samuels v.
Mackell, 401 U. S. 66
(1971), must give way before such interests in efficient judicial
administration as were relied upon by the Court of Appeals. We
think
Page 422 U. S. 928
that the interest of avoiding conflicting outcomes in the
litigation of similar issues, while entitled to substantial
deference in a unitary system, must of necessity be subordinated to
the claims of federalism in this particular area of the law. The
classic example is the petitioner in
Steffel and his
companion. Both were warned that failure to cease pamphleteering
would result in their arrest, but while the petitioner in
Steffel ceased and brought an action in the federal court,
his companion did not cease, and was prosecuted on a charge of
criminal trespass in the state court. 415 U.S. at
415 U. S. 455.
The same may be said of the interest in conservation of judicial
manpower. As worthy a value as this is in a unitary system, the
very existence of one system of federal courts and 50 systems of
state courts, all charged with the responsibility for interpreting
the United States Constitution, suggests that, on occasion, there
will be duplicating and overlapping adjudication of cases which are
sufficiently similar in content, time, and location to justify
being heard before a single judge had they arisen within a unitary
system.
We do not agree with the Court of Appeals, therefore, that all
three plaintiffs should automatically be thrown into the same
hopper for
Younger purposes, and should thereby each be
entitled to injunctive relief. We cannot accept that view, any more
than we can accept petitioner's equally Procrustean view that,
because M & L would have been barred from injunctive relief had
it been the sole plaintiff, Salem and Tim-Rob should likewise be
barred not only from injunctive relief, but from declaratory relief
as well. While there plainly may be some circumstances in which
legally distinct parties are so closely related that they should
all be subject to the
Younger considerations which govern
any one of
Page 422 U. S. 929
by common counsel, and have similar business activities and
problems, they are apparently unrelated in terms of ownership,
control, and management. We thus think that each of the respondents
should be placed in the position required by our cases as if that
respondent stood alone.
Respondent M & L could have pursued the course taken by the
other respondents after the denial of their request for a temporary
restraining order. Had it done so, it would not have subjected
itself to prosecution for violation of the ordinance in the state
court. When the criminal summonses issued against M & L on the
days immediately following the filing of the federal complaint, the
federal litigation was in an embryonic stage, and no contested
matter had been decided. In this posture, M & L's prayer for
injunction is squarely governed by
Younger.
We likewise believe that, for the same reasons,
Samuels v.
Mackell bars M & L from obtaining declaratory relief,
absent a showing of
Younger's special circumstances, even
though the state prosecution was commenced the day following the
filing of the federal complaint. Having violated the ordinance,
rather than awaiting the normal development of its federal lawsuit,
M & L cannot now be heard to complain that its constitutional
contentions are being resolved in a state court. Thus, M & L's
prayers for both injunctive and declaratory relief are subject to
Younger's restrictions. [
Footnote 3]
Page 422 U. S. 930
The rule with regard to the co-plaintiffs, Salem and Tim-Rob, is
equally clear, insofar as they seek declaratory relief. Salem and
Tim-Rob were not subject to state criminal prosecution at any time
prior to the issuance of a preliminary injunction by the District
Court. Under
Steffel, they thus could at least have
obtained a declaratory judgment upon an ordinary showing of
entitlement to that relief. The District Court, however, did not
grant declaratory relief to Salem and Tim-Rob, but instead granted
them preliminary injunctive relief. Whether injunctions of future
criminal prosecutions are governed by
Younger standards is
a question which we reserved in both
Steffel, 415 U.S. at
415 U. S. 463,
and
Younger v. Harris, 401 U.S. at
401 U. S. 41. We
now hold that, on the facts of this case, the issuance of a
preliminary injunction is not subject to the restrictions of
Younger. The principle underlying
Younger and
Samuels is that state courts are fully competent to
adjudicate constitutional claims, and therefore a federal court
should, in all but the most exceptional circumstances, refuse to
interfere with an ongoing state criminal proceeding. In the absence
of such a proceeding, however, as we recognized in
Steffel, a plaintiff may challenge the constitutionality
of the state statute in federal court, assuming he can satisfy the
requirements for federal jurisdiction.
See also Lake Carriers'
Assn. v. MacMullan, 406 U. S. 498,
406 U. S. 509
(1972). No state proceedings were pending against either Salem or
Tim-Rob at the time the District Court issued its preliminary
injunction. Nor was there any question that they satisfied the
requirements for federal jurisdiction. As we have already stated,
they were assuredly entitled to declaratory relief, and, since we
have previously
Page 422 U. S. 931
recognized that "[o]rdinarily . . . , the practical effect of
[injunctive and declaratory] relief will be virtually identical,"
Samuels, 401 U.S. at
401 U. S. 73, we
think that Salem and Tim-Rob were entitled to have their claims for
preliminary injunctive relief considered without regard to
Younger's restrictions. At the conclusion of a successful
federal challenge to a state statute or local ordinance, a district
court can generally protect the interests of a federal plaintiff by
entering a declaratory judgment, and therefore the stronger
injunctive medicine will be unnecessary. But, prior to final
judgment, there is no established declaratory remedy comparable to
a preliminary injunction; unless preliminary relief is available
upon a proper showing, plaintiffs in some situations may suffer
unnecessary and substantial irreparable harm. Moreover, neither
declaratory nor injunctive relief can directly interfere with
enforcement of contested statutes or ordinances except with respect
to the particular federal plaintiffs, and the State is free to
prosecute others who may violate the statute.
The traditional standard for granting a preliminary injunction
requires the plaintiff to show that, in the absence of its
issuance, he will suffer irreparable injury, and also that he is
likely to prevail on the merits. It is recognized, however, that a
district court must weigh carefully the interests on both sides.
Although only temporary, the injunction does prohibit state and
local enforcement activities against the federal plaintiff pending
final resolution of his case in the federal court. Such a result
seriously impairs the State's interest in enforcing its criminal
laws, and implicates the concerns for federalism which lie at the
heart of
Younger.
But while the standard to be applied by the district court in
deciding whether a plaintiff is entitled to a preliminary
injunction is stringent, the standard of appellate
Page 422 U. S. 932
review is simply whether the issuance of the injunction, in the
light of the applicable standard, constituted an abuse of
discretion.
Brown v. Chote, 411 U.
S. 452,
411 U. S. 457
(1973). While we regard the question as a close one, we believe
that the issuance of a preliminary injunction in behalf of
respondents Salem and Tim-Rob was not an abuse of the District
Court's discretion. As required to support such relief, these
respondents alleged (and petitioner did not deny) that absent
preliminary relief they would suffer a substantial loss of business
and perhaps even bankruptcy. Certainly the latter type of injury
sufficiently meets the standards for granting interim relief, for
otherwise a favorable final judgment might well be useless.
The other inquiry relevant to preliminary relief is whether
respondents made a sufficient showing of the likelihood of ultimate
success on the merits. Both the District Court and the Court of
Appeals found such a likelihood. The order of the District Court
spoke in terms of actually holding the ordinance unconstitutional,
but, in the context of a preliminary injunction, the court must
have intended to refer only to the likelihood that respondents
ultimately would prevail. The Court of Appeals properly clarified
this point. 501 F.2d at 20-21.
Although the customary "bar-room" type of nude dancing may
involve only the barest minimum of protected expression, we
recognized in
California v. LaRue, 409 U.
S. 109,
409 U. S. 118
(1972), that this form of entertainment might be entitled to First
and Fourteenth Amendment protection under some circumstances. In
LaRue, however, we concluded that the broad powers of the
States to regulate the sale of liquor, conferred by the
Twenty-first Amendment, outweighed any First Amendment interest in
nude dancing, and that a State could
Page 422 U. S. 933
therefore ban such dancing as a part of its liquor license
program.
In the present case, the challenged ordinance applies not merely
to places which serve liquor, but to many other establishments as
well. The District Court observed, we believe correctly:
"The local ordinance here attacked not only prohibits topless
dancing in bars, but also prohibits any female from appearing in
'any public place' with uncovered breasts. There is no limit to the
interpretation of the term 'any public place.' It could include the
theater, town hall, opera house, as well as a public market place,
street or any place of assembly, indoors or outdoors. Thus, this
ordinance would prohibit the performance of the 'Ballet Africains'
and a number of other works of unquestionable artistic and socially
redeeming significance."
364 F. Supp. at 483. We have previously held that, even though a
statute or ordinance may be constitutionally applied to the
activities of a particular defendant, that defendant may challenge
it on the basis of overbreadth if it is so drawn as to sweep within
its ambit protected speech or expression of other persons not
before the Court. As we said in
Grayned v. City of
Rockford, 408 U. S. 104,
408 U. S. 114
(1972):
"Because overbroad laws, like vague ones, deter privileged
activity, our cases firmly establish appellant's standing to raise
an overbreadth challenge."
Even if we may assume that the State of New York has delegated
its authority under the Twenty-first Amendment to towns such as
North Hempstead, and that the ordinance would therefore be
constitutionally valid under
LaRue, supra, if limited to
places dispensing alcoholic beverages, the ordinance in this case
is not so
Page 422 U. S. 934
limited. Nor does petitioner raise any other legitimate state
interest that would counterbalance the constitutional protection
presumptively afforded to activities which are plainly within the
reach of Local Law 1-1973.
See United States v. O'Brien,
391 U. S. 367,
391 U. S. 377
(1968).
In these circumstances, and in the light of existing case law,
we cannot conclude that the District Court abused its discretion by
granting preliminary injunctive relief. This is the extent of our
appellate inquiry, and we therefore "intimate no view as to the
ultimate merits of [respondents'] contentions."
Brown v. Chote,
supra at
411 U. S. 457.
The judgment of the Court of Appeals is reversed as to respondent M
& L, and affirmed as to respondents Salem and Tim-Rob.
It is so ordered.
[
Footnote 1]
The ordinance provides that each day's violation constitutes a
separate offense.
[
Footnote 2]
For the purposes of § 1254(2), local ordinances are treated as
state statutes.
See, e.g., Chicago v. Atchison, T. & S. F.
R. Co., 357 U. S. 77
(1958).
[
Footnote 3]
Respondent M & L urges in defense of its judgment that, even
if the case is controlled by the principles of
Younger and
Samuels v. Mackell, 401 U. S. 66
(1971), it may obtain injunctive and declaratory relief because of
the presence of the requisite special circumstances.
See
Younger, 401 U.S. at
401 U. S. 53-54.
In particular, M & L claims that it was the subject of
"repetitive harassing criminal prosecutions aimed at suppressing
the expressive activity carried on" at its bar. Brief for Appellees
35. The District Court did not have occasion to consider this
issue, and we decline to do so on the basis of the spare record
before us.
MR. JUSTICE DOUGLAS, concurring in the judgment in part and
dissenting in part.
While adhering to my position in
Younger v. Harris,
401 U. S. 37,
401 U. S. 58
(1971) (dissenting opinion), I join the judgment of the Court
insofar as it holds that Salem Inn and Tim-Rob were entitled to a
preliminary injunction pending disposition of their request for
declaratory relief. I do not condone the conduct of M & L in
violating the challenged ordinance without awaiting judicial action
on its federal complaint, but, like the Court of Appeals, I find no
compelling reason to distinguish M & L from the other
respondents in terms of the relief which is appropriate. I would
therefore affirm the judgment below in all respects.