Following reversal on state law grounds of appellee's conviction
of violating a New York statute by distributing anonymous handbills
in connection with the 1964 congressional election, appellee in
1966 sought a declaratory judgment in the District Court that the
statute was unconstitutional. Appellee alleged that he intended to
distribute the 1964 handbill and "similar anonymous leaflets" in
connection with the forthcoming 1966 election (when, it was
alleged, the Congressman would stand for reelection), and in
subsequent elections. The District Court abstained from passing on
appellee's claim for a declaratory judgment. This Court, on appeal,
held that such abstention was error, and remanded the case for
resolution of the declaratory judgment issue.
Zwickler v.
Koota, 389 U. S. 241. The
Court held that, on the remand appellee would have to "establish
the elements governing the issuance of a declaratory judgment,"
noting as relevant to that question that the Congressman who had
been the target of appellee's handbills had meanwhile been elected
to the Supreme Court of New York. On remand, the District Court,
without hearing evidence on the existence of the elements governing
the issuance of a declaratory judgment, held that the essential
elements to such relief existed "[w]hen this action was initiated,"
and that it was immaterial that the Congressman would not be a
candidate for reelection, and concluded that the statute impinged
on appellee's freedom of speech by deterring him from again
distributing anonymous handbills.
Held:
1. In the field of declaratory judgments, as elsewhere,
constitutional issues cannot be adjudicated except in actual cases
presenting concrete legal issues. P.
394 U. S.
108.
2. Since the New York statute prohibits only anonymous handbills
directly pertaining to election campaigns, and it was wholly
conjectural that another occasion might arise when appellee would
be prosecuted for distributing the handbills referred to in the
complaint because his sole concern related to a Congressman who
Page 394 U. S. 104
would not likely be a candidate again, the controversy here
lacked "sufficient immediacy and reality" to warrant issuance of a
declaratory judgment. Pp.
394 U. S.
109-110.
290 F.
Supp. 244, reversed and remanded.
MR JUSTICE BRENNAN delivered the opinion of the Court.
This case was here before as
Zwickler v. Koota,
389 U. S. 241
(1967). We there held that the three-judge District Court for the
Eastern District of New York erred in abstaining from deciding
whether Zwickler, appellee in the instant case, was entitled to a
declaratory judgment respecting the constitutionality of New York
Penal Law § 781-b, now New York Election Law § 457, and we remanded
to the District Court for a determination of that question. Section
781-b made it a crime to distribute anonymous literature in
connection with an election campaign. [
Footnote 1] Zwickler had been convicted of violating this
provision by distributing
Page 394 U. S. 105
anonymous handbills in connection with the 1964 congressional
election. That conviction was reversed, on state law grounds, by
the New York Supreme Court, Appellate Term. The New York Court of
Appeals affirmed in 1965 and filed a memorandum which stated that
constitutional questions had not been reached. 16 N.Y.2d 1069, 213
N.E.2d 467. A few months thereafter, on April 22, 1966, Zwickler
brought this suit.
The complaint sets forth the facts regarding the prosecution and
its termination. A Congressman standing for reelection in 1964 was
criticized in the anonymous handbill for opposing two amendments to
the 1964 Foreign Aid bill. [
Footnote 2] The complaint alleged that the
Page 394 U. S. 106
Congressman "will become a candidate in 1966 for reelection . .
. and has been a political figure and public official for many
years," and that Zwickler
"desires and intends to distribute . . . at the place where he
had previously done so and at various places in said [Kings]
County, the anonymous leaflet herein described . . . and similar
anonymous leaflets . . . at any time during the election campaign
of 1966 and in subsequent election campaigns or in connection with
any election of party officials, nomination for public office and
party position that may occur subsequent to said election campaign
of 1966."
It was disclosed on the argument of
Zwickler v. Koota
in this Court that the Congressman had left the House of
Representatives for a place on the Supreme Court of New York. We
deemed this development relevant to the question whether the
prerequisites for the issuance of a declaratory judgment were
present. We noted, however, that, probably because of the decision
to abstain, the parties had not addressed themselves to, and the
District Court had not adjudicated, that question. 389 U.S. at
389 U. S. 244,
n. 3. Therefore, we directed that, on the remand, "appellant
[Zwickler] must establish the elements governing the issuance of a
declaratory
Page 394 U. S. 107
judgment."
Id. at
389 U. S. 252,
n. 15;
see also id. at
389 U. S.
252-253, n. 16.
The District Court hearing on the remand was limited largely to
the oral argument of counsel, and no testimony was taken concerning
the existence of the elements governing the issuance of a
declaratory judgment. The three-judge court held that the
prerequisites of a declaratory judgment had been established by the
facts alleged in the complaint, and that the fact that the
Congressman who was the original target of the handbills would not
again stand for reelection did not affect the question. The court
said:
"The attempt of defendant to moot the controversy, and thus to
abort a declaration of constitutional invalidity, by citing the
circumstance that the Congressman concerning whom the Zwickler
handbill was published has since become a New York State Supreme
Court Justice must fail. When this action was initiated, the
controversy was genuine, substantial and immediate, even though the
date of the election to which the literature was pertinent had
already passed."
"
* * * *"
". . . The fortuitous circumstance that the candidate in
relation to whose bid for office the anonymous handbill was
circulated had, while vindication inched tediously forward, removed
himself from the role of target of the 1964 handbill does not moot
the plaintiff's further and far broader right to a general
adjudication of unconstitutionality his complaint prays for. We see
no reason to question Zwickler's assertion that the challenged
statute currently impinges upon his freedom of speech by deterring
him from again distributing anonymous handbills. His own interest,
as well as that of others who would with like anonymity practice
free speech in a
Page 394 U. S. 108
political environment persuade us to the justice of his
plea."
290 F.
Supp. 244, 248, 249 (1968). We noted probable jurisdiction
sub nom. Koota v. Zwickler, 393 U.S. 818 (1968). We
reverse.
The District Court erred in holding that Zwickler was entitled
to declaratory relief if the elements essential to that relief
existed "[w]hen this action was initiated." The proper inquiry was
whether a "controversy" requisite to relief under the Declaratory
Judgment Act existed at the time of the hearing on the remand.
[
Footnote 3] We now undertake
that inquiry.
"[T]he federal courts established pursuant to Article III of the
Constitution do not render advisory opinions. For adjudication of
constitutional issues, 'concrete legal issues, presented in actual
cases, not abstractions,' are requisite. This is as true of
declaratory judgments as any other field."
United Public Workers of America v. Mitchell,
330 U. S. 75,
330 U.S. 89 (1947).
"The difference between an abstract question and a 'controversy'
contemplated by the Declaratory Judgment Act is necessarily one of
degree, and it would be difficult, if it would be possible, to
fashion a precise test for determining in every case whether there
is such a controversy. Basically, the question in each case is
whether the facts alleged, under all the circumstances, show that
there is a substantial controversy, between parties having adverse
legal interests, of sufficient immediacy and reality to warrant the
issuance of a declaratory judgment."
Maryland Casualty Co. v. Pacific Coal & Oil Co.,
312 U. S. 270,
312 U. S. 273
(1941).
Page 394 U. S. 109
We think that, under all the circumstances of the case, the fact
that it was most unlikely that the Congressman would again be a
candidate for Congress precluded a finding that there was
"sufficient immediacy and reality" here. [
Footnote 4] The allegations of the complaint focus upon
the then forthcoming 1966 election, when, it was alleged, the
Congressman would again stand for reelection. The anonymous
handbills which the complaint identified as to be distributed in
the 1966 and subsequent elections were the 1964 handbill and
"similar anonymous leaflets." On the record, therefore, the only
supportable conclusion was that Zwickler's sole concern was
literature relating to the Congressman and his record. [
Footnote 5] Since the New York
statute's prohibition of anonymous handbills applies only to
handbills directly pertaining to election campaigns, and the
prospect was neither real nor immediate of a campaign involving the
Congressman, it was wholly conjectural that another occasion might
arise when Zwickler might be prosecuted for distributing the
handbills referred to in the complaint. His assertion in his brief
that the former Congressman can be "a candidate for Congress again"
is hardly a substitute for evidence that this is a prospect of
"immediacy and reality." Thus, the record is in sharp contrast to
that in
Evers v. Dwyer, 358 U. S. 202
(1958), relied upon by the District Court.
It was not enough to say, as did the District Court, that,
nevertheless, Zwickler has a
"further and far broader right to a general adjudication of
unconstitutionality . . . [in] [h]is own interest as well as that
of others
Page 394 U. S. 110
who would, with like anonymity, practice free speech in a
political environment. . . ."
The constitutional question, First Amendment or otherwise, must
be presented in the context of a specific live grievance. In
United Public Workers of America v. Mitchell, supra, at
330 U.S. 89-90, we
said:
"The power of courts, and ultimately of this Court, to pass upon
the constitutionality of acts of Congress arises only when the
interests of litigants require the use of this judicial authority
for their protection against actual interference. A hypothetical
threat is not enough."
The same is true of the power to pass upon the constitutionality
of state statutes. No federal court, whether this Court or a
district court, has
"jurisdiction to pronounce any statute, either of a State or of
the United States, void because irreconcilable with the
Constitution,
except as it is called upon to adjudge the legal
rights of litigants in actual controversies."
Liverpool, N.Y. & P. S.S. Co. v. Commissioners,
113 U. S. 33,
113 U. S. 39
(1885). (Emphasis added.)
See also United States v.
Raines, 362 U. S. 17,
362 U. S. 21
(1960). The express limitation of the Declaratory Judgment Act to
cases "of actual controversy" is explicit recognition of this
principle.
We conclude that Zwickler did not establish the existence at the
time of the hearing on the remand of the elements governing the
issuance of a declaratory judgment, and therefore that the District
Court should have dismissed his complaint. We accordingly intimate
no view upon the correctness of the District Court's holding as to
the constitutionality of the New York statute. The judgment of the
District Court is reversed, and the case is remanded with direction
to enter a new judgment dismissing the complaint.
It is so ordered.
[
Footnote 1]
Section 781-b, in pertinent part, made it a misdemeanor to
"distribute in quantity . . . any handbill . . . which contains
any statement . . . concerning any political party, candidate . . .
in connection with any election of public officers, party officials
. . . without . . . reproducing thereon . . . the name and post
office address of the . . . person . . . at whose instance . . .
such handbill . . . is so . . . distributed. . . ."
[
Footnote 2]
The text of the 1964 handbill is as follows:
"
REPRESENTATIVE MULTER -- EXPLAIN YOUR POSITIONS"
"
AID TO NASSER"
"On September 2, 1964, an amendment was proposed to a foreign
aid bill (Public Law 40). In substance, it would have cut off all
aid to the United Arab Republic. Congressman Multer spoke at length
against the amendment, and, in his own words, urged its defeat 'as
earnestly as I can.' He stated that his position was based on
'humanitarian instinct.' (Congressional Record 20792.)"
"In this respect, the following should be noted"
"(a) Congressman Multer's stand permits the diversion of funds
by Dictator Nasser to his armaments buildup."
"(b) The United Arab Republic is also a recipient of aid from
Communist Russia."
"(c) Egypt is now employing the technical skills of scientists,
formerly under the employ of the Nazis."
"(d) Congressman Multer debated against the amendment on the eve
of the summit conference held in Cairo by 13 Arab States which are
threatening the peace of the Near East and the State of Israel in
particular."
"
SOVIET ANTI-SEMITISM"
"The 1964 Foreign Aid bill was passed in the United States
Senate with an amendment sponsored by Senator Abraham Ribicoff (D.,
Conn.) that strongly condemned the anti-Semitic practices of the
Soviet Union. When this issue was brought to the House-Senate
conferees, a much more general statement decrying all types of
religious bigotry was adopted."
"Representative Multer praised this 'watered down' measure on
the House floor, and stated: "
" While the Senate version did point the finger directly at
Soviet Russia, the version as finally adopted, I think, is much the
better one."
" I believe, instead of pointing the finger at the culprit now
before the bar of world public opinion where it is being so
severely condemned, it is much better that this Congress go on
record as it is doing now, against religious persecution wherever
it may raise its ugly head."
"(Congressional Record 22850.)"
"
WHY MR. MULTER, WHY? ? ? ? ?"
[
Footnote 3]
The Declaratory Judgment Act, 28 U.S.C. § 2201, expressly
provides:
"
In a case of actual controversy within its
jurisdiction . . . any court of the United States, upon the filing
of an appropriate pleading, may declare the rights and other legal
relations of any interested party seeking such declaration, whether
or not further relief is or could be sought."
(Emphasis added.)
[
Footnote 4]
The former Congressman's term of office as a State Supreme Court
Justice is 14 years.
[
Footnote 5]
The allegation of the complaint that Zwickler might distribute
anonymous handbills relating to "party officials" does not indicate
otherwise. The Congressman held an elective party position as a
district leader.
See 290 F. Supp. at 248.