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March 1, 1968


Before Hastings, Circuit Judge, and Hoffman and Will, District Judges.

The opinion of the court was delivered by: Will, District Judge.


This is allegedly a class action, brought by the plaintiffs pursuant to Rule 23(a)(1)(3) of the Federal Rules of Civil Procedure on their own behalf and on behalf of all others similarly situated, seeking declaratory and injunctive relief. Some of the individual plaintiffs are negro citizens who currently face criminal prosecution before the Circuit Court of Cook County, Illinois. These prosecutions arose out of a series of demonstrations taking place in Chicago, Illinois, in 1967. Plaintiff, ACT, is an unincorporated association, maintaining offices in Chicago, Illinois, among the purposes of which is to secure negro citizens their federal rights and end all forms of racial segregation and discrimination. To obtain these objectives, it engages in a variety of protest activities, including picketing, demonstrations, rallies, mass meetings, voter registration drives, community organization and publication. Plaintiffs, Lawrence Landry, Robert Lucas, Robert Brown and Michael Rogers are negroes and sue as representatives of the class of all negroes in the City of Chicago. Defendants are either officers of the City of Chicago, Illinois, or officers of Cook County, Illinois.

This Court has jurisdiction of this cause on the basis of both general federal question jurisdiction, 28 U.S.C. § 1331, and specific federal jurisdiction over cases seeking relief for certain specified federal wrongs, 28 U.S.C. § 1343.*fn1

The complaint alleges that the defendants have purposefully entered into a plan or scheme of concerted and joint action among themselves and with other persons unknown to the plaintiffs to deprive the plaintiffs of rights, privileges and immunities secured to them by the Constitution and laws of the United States. Pursuant to this plan, the defendants have allegedly prosecuted and threatened to prosecute the plaintiffs and other members of the class they represent under color and authority of certain statutes of the state of Illinois and certain ordinances of the City of Chicago. It is alleged that certain plaintiffs and other members of the class have been arrested without warrants of any kind or probable cause while peacefully demonstrating, that prosecutions based on these statutes and ordinances have been instituted against these plaintiffs and that they have been held on unreasonable and exorbitant bail. The complaint asserts that these arrests and prosecutions, as well as threats of future enforcement of the statutes and ordinances, have been made by defendants without any expectation of securing valid convictions, but rather are part of a plan to employ arrest, detention on excessive bail and threats of prosecution to harass plaintiffs and their supporters and to discourage them from asserting and exercising their federal rights.

The complaint also alleges that the state statutes and city ordinances under which this plan or scheme has been effectuated are unconstitutional on their face.*fn2 It is contended that these statutes and ordinances are overbroad, vague and indefinite, permit a construction which would violate plaintiffs' First Amendment guarantees and fail to meet the requisites of certainty and specificity which are required of criminal statutes under the principles of due process of law.

On the basis of these allegations, the plaintiffs seek: (1) the issuance of declaratory judgments declaring that the state statutes and city ordinances in question are void on their face as violative of the Constitution of the United States, and/or as applied to the conduct of the plaintiffs herein, (2) the issuance of a permanent injunction restraining the defendants, their agents, and attorneys from the enforcement, operation, or execution of any of these statutes and ordinances, and (3) the issuance of a permanent injunction restraining the defendants, their agents and attorneys from impeding, intimidating, hindering and preventing plaintiffs or members and supporters of ACT from exercising the rights, privileges, and immunities guaranteed to them by the Constitution and laws of the United States.

Plaintiffs filed their complaint on October 27, 1967. Simultaneously, they moved that a three-judge court be convened to hear and determine the issues presented therein. Shortly thereafter, both the state and city defendants moved to dismiss, contending, inter alia, that the complaint failed to disclose a basis for equitable relief and that the doctrine of federal abstention should be utilized to allow the state courts an opportunity to adjudicate the issues presented in the complaint.

An opinion dealing with these motions was issued on December 28, 1967.*fn3 The defendants' motions to dismiss were denied. The complaint was found to raise several substantial constitutional issues within the competency of a three-judge court and to allege a formal basis for equitable relief. The question of abstention was held to be premature. Plaintiffs' claims regarding the challenged city ordinances, however, were found to be inappropriate for determination by a three-judge court.*fn4 Accordingly, these claims were severed from the claims involving the state statutes and only the latter have been certified to this tribunal.

The issues involving the alleged unconstitutional application of the challenged state statutes have been held in abeyance pending determination of the constitutionality of the statutes themselves. Briefs addressed to the latter issue have been submitted by the parties, and a hearing on these issues was held on January 27, 1968.

Plaintiffs have abandoned their challenges to the constitutionality of the Illinois "Aggravated Assault"*fn5 and "Aggravated Battery"*fn6 statutes. The remaining statutes are: the Illinois "Mob Violence" statute,*fn7 the Illinois "Intimidation" statute,*fn8 and the Illinois statute proscribing "Resisting or Obstructing a Peace Officer."*fn9 Plaintiffs assert that these statutes are unconstitutional on their face for reasons of overbreadth, vagueness and indefiniteness.

The Question of Federal Forbearance

The defendants have reasserted the arguments which they raised in their earlier motion to dismiss. They point out that certain of the plaintiffs currently face prosecution in the state courts for violations of the statutes challenged and that these plaintiffs have not asserted any constitutional attack upon any of these statutes in those criminal proceedings, even though such an attack is readily available under Illinois law and procedure. They argue that the plaintiffs have adequate remedies available to them in the state courts and that the mere possibility of an erroneous application of constitutional standards by these courts does not amount to irreparable injury of such a nature as to justify equitable relief. It is also argued that federal declaratory and injunctive relief would be disruptive of the orderly administration of the state courts. Defendants contend, therefore, that this is a proper case for federal abstention.

The defendants' contentions rest on the premise that the principle of federalism requires that a federal district court forbear from direct interference with local law enforcement proceedings. Interference of the nature contemplated herein, it is argued, is destructive of state sovereignty and, hence, jeopardizes our federal system. An ultimate determination of these questions by the state courts, defendants admit, is subject to Supreme Court review. They distinguish such review from federal action at the present time, since the autonomy of local institutions would not be affected immediately and directly.

While state autonomy is a basic consideration, it is not the only one. Federalism is also designed to check local abuse of essential individual rights arising under the Constitution and laws of the United States.*fn10 The state courts have a duty to preserve these rights, and it has been generally assumed that they will fulfill this duty. The doctrine of abstention has often been invoked in order to avoid federal interference with state criminal prosecutions.*fn11 Similarly, limitations on federal equitable relief have been rigorously applied on numerous occasions to achieve the same result.*fn12 Deference to the interests and autonomy of the states, however, does not forbid all prior restraint of state criminal proceedings or independent inquiry by a federal tribunal into questions inherently linked with the enforcement of state laws.*fn13 The federal courts are vested with the primary responsibility of vindicating federal rights.*fn14 Where state statutes or state conduct allegedly impair rights guaranteed by the Constitution and particularly the First Amendment thereto, federal deference to state tribunals ultimately depends on whether these tribunals can adequately preserve the federal rights of the individual.*fn15 As is apparent from recent decisions of the United States Supreme Court and inferior federal courts, the fact that constitutional defenses may be raised in state court criminal proceedings does not in and of itself compel or even permit abstention.

In Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965), for example, the Supreme Court clearly dispelled any notion that federalism requires automatic deference to state courts. Dombrowski involved a civil action seeking declaratory and injunctive relief from threatened prosecution under a state anti-subversive statute. The plaintiff alleged, first, that the prosecution was instituted in bad faith solely to discourage civil rights activities and, second, that the statute was an unconstitutionally vague regulation of freedom of expression. The district court dismissed, applying traditional equitable limitations on a federal court's power to enjoin state criminal proceedings and also the doctrine of abstention.*fn16

On appeal, the Supreme Court reversed, indicating that either ground, if proven, justified federal equitable relief. The Court stated,

    [t]he allegations in this complaint depict a
  situation in which defense of the State's
  criminal prosecution will not assure adequate
  vindication of constitutional rights. They
  suggest that a substantial loss 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
  485-486, 85 S.Ct. at 1120.

The Court also held that federal abstention was improper "where * * * statutes are justifiably attacked on their face as abridging free expression or as applied for the purpose of discouraging protected activities." Id. at 489-490, 85 S.Ct. at 1122. The controlling consideration on the abstention issue, as on the question of equitable relief, was the inability of the state court proceedings to assure expeditious vindication of federal rights. Id. at 490-492, 85 S.Ct. 1116. Cf. Cameron v. Johnson, 381 U.S. 741, 755, 85 S.Ct. 1751, 14 L.Ed.2d 715 (1965) (dissenting opinion).

In Zwickler v. Koota, 389 U.S. 241, 88 S.Ct. 391, 19 L.Ed.2d 444 (1967), the Supreme Court again indicated that the federal courts may not defer to the state courts where deference is likely to result in a substantial impairment of federal rights. The appellant in Zwickler had sought injunctive and declaratory relief in a federal district court from threatened enforcement of a state statute making it unlawful to distribute anonymous political handbills. Appellant contended that this statute was an overbroad regulation of expression. A three-judge district court applied the abstention doctrine, reasoning that abstention was justified where there were no "special circumstances" entitling plaintiff to an injunction against criminal prosecution.*fn17

The Supreme Court reversed the district court and remanded the cause, concluding that irrespective of the propriety of federal injunctive relief, it was inappropriate to abstain from declaratory relief.*fn18 In its opinion, the Court pointed out that the claimed constitutional infirmity was overbreadth and that no state court construction could obviate this vice. Federal forbearance, it reasoned, would result in delay during which the valid exercise of First Amendment rights might be inhibited.*fn19 Under such circumstances, it concluded that the federal courts have a duty to provide a federal forum for at least declaratory clarification of the federal claim.*fn20

The principles announced by the Supreme Court in Dombrowski and Zwickler appear clearly applicable in the instant case. Plaintiffs claim that statutes invalid because of vagueness, indefiniteness and overbreadth have been used by defendants in furtherance of a scheme to discourage plaintiffs' legitimate exercise of First Amendment rights. In Dombrowski, the Court indicated that defense in a state criminal prosecution is not sufficient to correct either of these evils. Arrest, detention, and threats of prosecution may have an in terrorem effect on free expression. Where prosecutions are instituted in bad faith in furtherance of a scheme to discourage protected activities, the ultimate success of the defendant does not alter the impropriety of the unconstitutional scheme.*fn21 The adjudication simply resolves the guilt or innocence of the defendant; it does not purge the scheme of its impact upon federally protected rights.*fn22

Similarly, the possible application of a vague, uncertain, or overbroad statute regulating freedom of expression may have an inhibiting effect on the valid exercise of freedom of expression. Where prosecution is instituted under such a statute and its provisions are not susceptible to clarification in a single prosecution, defense in a state criminal proceeding is likely to lead to piecemeal construction resolving only the uncertainty of the defendant with no likelihood of obviating similar uncertainty for others.*fn23 Those affected or potentially affected by such a statute, however, are entitled to be free from the burden of resolving its uncertainty through state prosecutions.*fn24

Defendants contend that the conduct of the plaintiffs who are facing state prosecution is "hard core conduct" which would obviously be prohibited under a narrow and clearly constitutional construction of the statutes. Hence, they argue, federal equitable relief is completely unwarranted. But even assuming arguendo that equitable relief is unwarranted, this does not, as Zwickler holds, obviate plaintiffs' right to declaratory relief. Moreover, the class also includes plaintiffs who do not now face prosecution. The statutes in dispute are challenged on grounds of overbreadth, as well as vagueness.*fn25 Zwickler indicates that under such circumstances a federal court has a duty to adjudicate the federal claims which are before it and to render declaratory relief one way or the other.*fn26

The Applicable Constitutional Principles

As noted earlier, this suit arises out of the application and threatened future application of certain Illinois statutes and ordinances of the City of Chicago to plaintiffs' civil rights activities. The claims regarding the application of the city ordinances do not pose a proper question for a three-judge court and have been severed from the instant proceeding for consideration by a single judge. The plaintiffs' claims in regard to the remaining state statutes are, first, that these statutes have been applied in bad faith, solely for the purpose of discouraging their civil rights activities, and, second, that the Illinois "Mob Action" statute, "Resisting Arrest" statute, and "Intimidation" statute are unconstitutionally uncertain both for reasons of vagueness and overbreadth. The adjudication of the first grounds has been held in abeyance and the scope of the present inquiry, accordingly, has been limited to the constitutionality of the provisions of the three statutes which plaintiffs assail. Before undertaking any discussion of these specific statutes, however, a brief canvass of the applicable constitutional principles would seem appropriate.

In its most basic sense, the present suit involves the boundaries of state regulation of demonstrations, picketing, mass protest meetings, marches, and similar assemblies. Although demonstrations are distinguishable from other forms of self expression, it is generally recognized that they are within the protection of the First Amendment. There are two basic reasons for this. The first is that the fundamental considerations underlying the rights of free speech and peaceful assembly are also relevant to peaceful demonstration. Peaceful demonstration, like the rights of free speech and peaceful assembly, advances society's interests in a variety of ways. Through peaceful demonstration, individual members of society may express their views and thereby participate in the political apparatus of a democracy. Demonstration, like most conventional means of expression, also assures the disclosure and discussion of the real issues faced by society, thereby making possible rational judgment by the electorate. It provides an outlet for dissenting people, and history reveals that dissentient groups are more likely to adhere to the majority will, if their views have also been aired. Similarly, it provides minorities an opportunity to force re-examination of social institutions, to enlist the sympathy of other citizens, to mobilize supporters and ultimately to strengthen their bargaining position.*fn27 Ultimately, therefore, peaceful demonstration plays a role in the maintenance of a balance between stability and change in society, very much like other First Amendment rights.

The second reason is that peaceful demonstration is a practical means of political protest.*fn28 More conventional means of self-expression often are of little real utility to political minorities. The instruments of mass media may be beyond their financial resources and political leaders may turn a deaf ear to persons who are unpopular with, or unknown to, the general public. A demonstration, therefore, may be the only effective means by which a minority can publicize a message or reach a desired audience.*fn29

Demonstrations will sometimes, however, conflict with various other legitimate state interests. In such instances, their societal value must be subordinated to other values and considerations. Perhaps the most important countervailing consideration is the state's interest in preventing physical violence or abuse of property. Thus, demonstrations lose their constitutional protection if the participants engage in violence.*fn30 And, under certain circumstances, conduct short of violence may also subject demonstrators to arrest or dispersal. For instance, provocative conduct or language which undertakes incitement to riot may also lead to loss of constitutional protection.*fn31 Other state interests which have been held to justify similar regulation of demonstrations include the maintenance of the free flow of traffic*fn32 and the prevention of substantial interference with government operations or the regular use of public property.*fn33

Although the Supreme Court has indicated that demonstrations are subject to greater state regulation than "pure speech,"*fn34 it seems clear that the state may only impose "reasonable" restrictions on time, place, duration, or manner.*fn35 The reasonableness of a regulatory measure must necessarily be viewed in terms of the competing interests of the demonstrators and the state. In cases where the reasonableness of the application of a regulatory measure is challenged, this question ultimately depends upon the balance of a number of factors: the gravity of the evil which the state seeks to prohibit, the probability of the evil, the conduct and intent of the demonstrators, the circumstances of the demonstration, and the alternatives open to the government which infringe upon the demonstrator's interests to a lesser extent.*fn36 In cases where the reasonableness of the regulatory measure itself is challenged, as in the present case, the constitutionality of the regulation turns upon its certainty and its breadth.*fn37

The cases in this latter category actually involve two distinct concepts: (1) vagueness or indefiniteness, and (2) overbreadth.*fn38 These questions frequently overlap in any given case and are often loosely referred to in the aggregate as the "vagueness doctrine." Their application, however, is based on different constitutional principles.

The concept of vagueness or indefiniteness rests on the constitutional principle that procedural due process requires fair notice and proper standards for adjudication. The primary issues involved are whether the provisions of a penal statute are sufficiently definite to give reasonable notice of the prohibited conduct to those who wish to avoid its penalties and to apprise judge and jury of standards for the determination of guilt.*fn39 If the statute is so obscure that men of common intelligence must necessarily guess at its meaning and differ as to its applicability, it is unconstitutional.*fn40

The concept of overbreadth, on the other hand, rests on principles of substantive due process which forbid the prohibition of certain individual freedoms. The primary issue is not reasonable notice or adequate standards, although these issues may be involved. Rather the issue is whether the language of the statute, given its normal meaning, is so broad that its sanctions may apply to conduct protected by the Constitution.*fn41 Frequently, the resolution of this issue depends upon whether the statute permits police and other officials to wield unlimited discretionary powers in its enforcement.*fn42 If the scope of the power permitted these officials is so broad that the exercise of constitutionally protected conduct depends on their own subjective views as to the propriety of the conduct, the statute is unconstitutional.*fn43

These concepts have particular relevance to statutes touching upon the areas of free speech and assembly. Although the state may regulate speech and assembly where the exercise of these rights conflicts with certain state interests, it may regulate only to the extent necessary to discharge these interests.*fn44 A vague or overbroad statute, however, is likely to have a deterrent effect which is beyond that necessary to fulfill the state's interests. Rather than chance prosecution, people will tend to refrain from speech and assembly which might come within the statute's ambit.*fn45

Such a deterrent effect on the exercise of these rights is impermissible under the First Amendment.*fn46 The Amendment was designed not only to protect these rights, but also to encourage their use. Consequently, the requirements of clarity, definiteness, and narrow scope are most strictly observed when a statute places a possible limitation upon First Amendment rights.*fn47 Such scrutiny is necessary to provide a buffer between the valid exercise of the police power by the state and excessive restriction of the free dissemination of ideas.*fn48

A number of factors are taken into consideration in determining whether a state regulation meets these standards of clarity and narrowness. Among them are: (1) whether a substantial interest worthy of protection is identified or apparent from the language of the statute;*fn49 (2) whether the terms of the regulation are susceptible to objective measurement by men of common intelligence;*fn50 (3) whether those charged with its enforcement are vested only with limited discretion;*fn51 (4) if penal, whether some element of knowledge or intent to obstruct a state interest is required;*fn52 and (5) whether its clarity is dependent upon manifold cross-reference to inter-related enactments or regulations.*fn53

The Mob Action Statute

Plaintiffs contend that the Illinois Mob Action statute, Ill.Rev.Stat. Ch. 38, § 25-1, is void for both reasons of vagueness and overbreadth. It provides:

(a) Mob action consists of any of the following:

    (1) The use of force or violence disturbing the
    public peace by 2 or more persons acting
    together and without authority of law; or
    (2) The assembly of 2 or more persons to do an
    unlawful act; or
    (3) The assembly of 2 or more persons, without
    authority of law, for the purpose of doing
    violence to the person or property of any one
    supposed to have been guilty of a violation of
    the law, or for the purpose of exercising
    correctional powers or regulative powers over
    any person by violence.
  (b) Any person engaged in mob action shall be
  fined not to exceed $500 or imprisoned in a penal
  institution other than the penitentiary ...

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