OPINION
MYRON L. GORDON, District Judge.
This is an action in which plaintiffs, seek equitable relief to prevent their being prosecuted by officials of the state of Wisconsin for an alleged violation of Sec. 947.01, Wis.Stats. The Wisconsin statute provides as follows:
“947.01 Disorderly conduct. Whoever does any of the following may be fined not more than $100 or imprisoned not more than 30 days: (1) In a public or private place, engages in violent, abusive, indecent, profane, boisterous, unreasonably loud, or otherwise disorderly conduct under circumstances in which such conduct tends to cause or provoke a disturbance.”
The state court actions were commenced against these plaintiffs before the latter began the instant action. The state court actions remain pending.
[133]*133The complaint in this court seeks either a declaratory judgment or interlocutory injunctive relief to enjoin the alleged deprivation of the plaintiffs’ rights, privileges and immunities under the United States Constitution.
A temporary restraining order was entered by the U. S. district court enjoining the defendants from further proceedings to enforce Wisconsin Statute 947.01, pending a further order of the court. Then a three-judge court was convened, and a hearing was held on April 17, 1967. At the conclusion of that hearing, this court took under advisement the plaintiffs’ request for equitable relief and continued the temporary restraining order. I believe that the plaintiffs’ application should be denied and further that the temporary restraining order should be terminated.
The conduct which gave rise to the state court prosecutions, and, subsequently, to the complaint in this court, stemmed from occurrences on February 21 and February 22, 1967, in Madison, Wisconsin. The pleadings disclose conflicting factual claims. There are before us affidavits by the plaintiffs, and also copies of the criminal complaints filed against them in the state court. These documents, together with the other pleadings now before this court, reflect that the plaintiffs were arrested while engaging in protest demonstrations on the campus of the University of Wisconsin in Madison. The plaintiffs expressed their views regarding the war in Vietnam and the use of napalm. The immediate occasion of the protests related to the University’s permitting a private company, which manufactures napalm, to conduct employment interviews in campus buildings. Upon their arrest, each was charged with violation of the disorderly conduct statute, and each was released upon bail in the sum of $105.
The plaintiffs contend that they were engaged in the legitimate exercise of their rights of free speech and’ assembly and that they were doing so by lawful and peaceful means, including picketing and leafletting. The complaints in the state court, appended to the answer in this action, itemize the nature of the alleged disorderly conduct and are specific as to both time and place; they indicate that certain of the plaintiffs, by continued presence in the buildings after requests to leave, and that others of the plaintiffs by loud speech interfered with or interrupted interviews and classes being conducted in the university building.
The plaintiffs contend that Sec. 947.01 of the Wisconsin statutes, on its face, is vague, over broad and also encompasses within its coverage activities which are protected by the first amendment to the United States Constitution. In State v. Givens (1965), 28 Wis.2d 109, 135 N.W. 2d 780, the Wisconsin disorderly conduct statute was challenged as being too indefinite, and that view was rejected with the state court relying upon Lanzetta v. New Jersey (1939), 306 U.S. 451, 453, 59 S.Ct. 618, 83 L.Ed. 888, and Connally v. General Construction Co. (1926), 269 U.S. 385, 391, 46 S.Ct. 126, 70 L.Ed. 322.
Plaintiffs’ conduct, according to the state’s version, bears some similarity to the conduct involved in the Givens Case, where the convictions related to a demonstration within a public building, interfering with the activities usually carried on there, and in deliberate and knowing violation of reasonable regulations of those in charge of the area, reasonably designed to preserve good order and facilitate the public uses for which the building was intended. Although distinguishable, there is some degree of similarity to the facts in Brown v. State of Louisiana (1966), 383 U.S. 131, 86 S.Ct. 719, 15 L.Ed.2d 637 (presence within a public building, continued after official direction to leave). In that ease, decided after Givens, the Supreme Court of the United States reversed convictions under a Louisiana statute.
The pleadings suggest the factual issues between the parties. The dominant legal issue for adjudication is also readily apparent: Is the disorderly conduct statute one which regulates expression, and is it “over broad” so that these plaintiffs [134]*134are entitled to an adjudication of invalidity whether or not their own conduct could properly be prohibited by a more specific statute?
The legal and factual issues in this court are the same as those which would have to be resolved in the state court actions if they were permitted to proceed. The nub question is whether it is appropriate for this court to step in and determine these issues first.
Applying common sense principles of comity to the existing situation, I find no compelling reason why this court should assert power to decide these issues in this action and thus displace the state court from a resolution of the same issues in an action already before it.
The seventh circuit court of appeals recently reviewed a challenge to the Illinois disorderly conduct statute. In United States v. Woodard and United States v. Seelig, 376 F.2d 136, decided April 4, 1967, (Cases Nos. 15566 and 15567), the court ruled that the statute was not void for vagueness. The Illinois statute provides, in part, as follows:
“A person commits disorderly conduct when he knowingly * * * does any act in such unreasonable manner as to alarm or disturb another and to provoke a breach of the peace.”
In analyzing the vagueness argument, the court stated as follows:
“The Constitution does not require impossible standards of specificity in penal statutes. It requires only that the statute convey ‘sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices.’ United States v. Petrillo, 332 U.S. 1, 8, 67 S.Ct. 1538, 91 L.Ed. 1877 (1947). When measured by this criterion, section 26-1 (a) (1) of the Illinois disorderly conduct statute does not offend due process.
“The statute proscribes conduct that is so unreasonable as to ‘alarm or disturb’ another and provoke a ‘breach of the peace.' The term ‘breach of the peace’ has never had a precise meaning in relation to specific conduct. Yet from its early common law origin to the present it has received a fairly well defined gloss. ‘The offense known as breach of the peace embraces a great variety of conduct destroying or menacing public order and tranquility. It includes not only violent acts but acts and words likely to produce violence in others.’ Cantwell v.
Free access — add to your briefcase to read the full text and ask questions with AI
OPINION
MYRON L. GORDON, District Judge.
This is an action in which plaintiffs, seek equitable relief to prevent their being prosecuted by officials of the state of Wisconsin for an alleged violation of Sec. 947.01, Wis.Stats. The Wisconsin statute provides as follows:
“947.01 Disorderly conduct. Whoever does any of the following may be fined not more than $100 or imprisoned not more than 30 days: (1) In a public or private place, engages in violent, abusive, indecent, profane, boisterous, unreasonably loud, or otherwise disorderly conduct under circumstances in which such conduct tends to cause or provoke a disturbance.”
The state court actions were commenced against these plaintiffs before the latter began the instant action. The state court actions remain pending.
[133]*133The complaint in this court seeks either a declaratory judgment or interlocutory injunctive relief to enjoin the alleged deprivation of the plaintiffs’ rights, privileges and immunities under the United States Constitution.
A temporary restraining order was entered by the U. S. district court enjoining the defendants from further proceedings to enforce Wisconsin Statute 947.01, pending a further order of the court. Then a three-judge court was convened, and a hearing was held on April 17, 1967. At the conclusion of that hearing, this court took under advisement the plaintiffs’ request for equitable relief and continued the temporary restraining order. I believe that the plaintiffs’ application should be denied and further that the temporary restraining order should be terminated.
The conduct which gave rise to the state court prosecutions, and, subsequently, to the complaint in this court, stemmed from occurrences on February 21 and February 22, 1967, in Madison, Wisconsin. The pleadings disclose conflicting factual claims. There are before us affidavits by the plaintiffs, and also copies of the criminal complaints filed against them in the state court. These documents, together with the other pleadings now before this court, reflect that the plaintiffs were arrested while engaging in protest demonstrations on the campus of the University of Wisconsin in Madison. The plaintiffs expressed their views regarding the war in Vietnam and the use of napalm. The immediate occasion of the protests related to the University’s permitting a private company, which manufactures napalm, to conduct employment interviews in campus buildings. Upon their arrest, each was charged with violation of the disorderly conduct statute, and each was released upon bail in the sum of $105.
The plaintiffs contend that they were engaged in the legitimate exercise of their rights of free speech and’ assembly and that they were doing so by lawful and peaceful means, including picketing and leafletting. The complaints in the state court, appended to the answer in this action, itemize the nature of the alleged disorderly conduct and are specific as to both time and place; they indicate that certain of the plaintiffs, by continued presence in the buildings after requests to leave, and that others of the plaintiffs by loud speech interfered with or interrupted interviews and classes being conducted in the university building.
The plaintiffs contend that Sec. 947.01 of the Wisconsin statutes, on its face, is vague, over broad and also encompasses within its coverage activities which are protected by the first amendment to the United States Constitution. In State v. Givens (1965), 28 Wis.2d 109, 135 N.W. 2d 780, the Wisconsin disorderly conduct statute was challenged as being too indefinite, and that view was rejected with the state court relying upon Lanzetta v. New Jersey (1939), 306 U.S. 451, 453, 59 S.Ct. 618, 83 L.Ed. 888, and Connally v. General Construction Co. (1926), 269 U.S. 385, 391, 46 S.Ct. 126, 70 L.Ed. 322.
Plaintiffs’ conduct, according to the state’s version, bears some similarity to the conduct involved in the Givens Case, where the convictions related to a demonstration within a public building, interfering with the activities usually carried on there, and in deliberate and knowing violation of reasonable regulations of those in charge of the area, reasonably designed to preserve good order and facilitate the public uses for which the building was intended. Although distinguishable, there is some degree of similarity to the facts in Brown v. State of Louisiana (1966), 383 U.S. 131, 86 S.Ct. 719, 15 L.Ed.2d 637 (presence within a public building, continued after official direction to leave). In that ease, decided after Givens, the Supreme Court of the United States reversed convictions under a Louisiana statute.
The pleadings suggest the factual issues between the parties. The dominant legal issue for adjudication is also readily apparent: Is the disorderly conduct statute one which regulates expression, and is it “over broad” so that these plaintiffs [134]*134are entitled to an adjudication of invalidity whether or not their own conduct could properly be prohibited by a more specific statute?
The legal and factual issues in this court are the same as those which would have to be resolved in the state court actions if they were permitted to proceed. The nub question is whether it is appropriate for this court to step in and determine these issues first.
Applying common sense principles of comity to the existing situation, I find no compelling reason why this court should assert power to decide these issues in this action and thus displace the state court from a resolution of the same issues in an action already before it.
The seventh circuit court of appeals recently reviewed a challenge to the Illinois disorderly conduct statute. In United States v. Woodard and United States v. Seelig, 376 F.2d 136, decided April 4, 1967, (Cases Nos. 15566 and 15567), the court ruled that the statute was not void for vagueness. The Illinois statute provides, in part, as follows:
“A person commits disorderly conduct when he knowingly * * * does any act in such unreasonable manner as to alarm or disturb another and to provoke a breach of the peace.”
In analyzing the vagueness argument, the court stated as follows:
“The Constitution does not require impossible standards of specificity in penal statutes. It requires only that the statute convey ‘sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices.’ United States v. Petrillo, 332 U.S. 1, 8, 67 S.Ct. 1538, 91 L.Ed. 1877 (1947). When measured by this criterion, section 26-1 (a) (1) of the Illinois disorderly conduct statute does not offend due process.
“The statute proscribes conduct that is so unreasonable as to ‘alarm or disturb’ another and provoke a ‘breach of the peace.' The term ‘breach of the peace’ has never had a precise meaning in relation to specific conduct. Yet from its early common law origin to the present it has received a fairly well defined gloss. ‘The offense known as breach of the peace embraces a great variety of conduct destroying or menacing public order and tranquility. It includes not only violent acts but acts and words likely to produce violence in others.’ Cantwell v. State of Connecticut, 310 U.S. 296, 308, 60 S.Ct. 900, 84 L.Ed. 1213 (1940). The term connotes conduct that creates consternation and alarm.-,..It.is.an. indecorum that incites public turbulence; yet violent conduct is not a necessary element.
Statutes which intrude upon first amendment rights may be held to be over broad because such freedoms are “delicate and vulnerable, as well as supremely precious in our society.” N.A.A.C.P. v. Button (1963), 371 U.S. 415, 433, 83 S.Ct. 328, 338, 9 L.Ed.2d 405; Thornhill v. State of Alabama (1965), 310 U.S. 88, 97, 60 S.Ct. 736, 84 L.Ed. 1093; State v. Smith (1966), 46 N.J. 510, 218 A.2d 147, cert. denied, 385 U.S. 838, 87 S.Ct. 85, 17 L.Ed.2d 71. However, in the case at bar, there is no reason to believe that Wisconsin is about to punish these plaintiffs for “peacefully expressing unpopular views.” Cox v. State of Louisiana (1965), 379 U.S. 536, 551, 85 S.Ct. 453, 13 L.Ed.2d 471. See also Edwards v. S. Carolina (1963) 372 U.S. 229, 237, 83 S.Ct. 680, 9 L.Ed.2d 697.
I would distinguish the type of protest involved in Brown v. State of Louisiana (1966), 383 U.S. 131, 86 S.Ct. 719, 15 L.Ed.2d 637, from the conduct alleged in the case at bar because in the latter case the demeanor of the protestors was clearly not disorderly. In the Brown Case, there was a civil rights issue presented when five Negro men persisted in remaining quietly in a segregated public library. The court noted that their “deportment while in the library was unexceptionable. They were neither loud, boisterous, obstreperous, indecorous nor impolite.” It was manifest, said the court in that case, that “they intended [135]*135to and did stage a peaceful and orderly protest demonstration * * * ”
I believe that upon the charges against the plaintiffs in the case at bar the state is entitled to prosecute them for such conduct even if such conduct occurs at a time when they were enjoying otherwise protected constitutional privileges, unless there is reason to believe that their being prosecuted is a mere pretext for the denial of such privileges. In other words, one may not be convicted, for. disorderly conduct under a statute such as that in Wisconsin merely because he espouses unpopular ideas or merely because others are thereby stimulated to commit disorderly acts; on the other hand, conduct which is in fact disorderly is not insulated because it is perpetrated while engaged in a protest demonstration.
I do not read Givens as a declaration by the Wisconsin supreme court that the propounding of unpopular views will qualify for conviction under Sec. 947.01 (1). However, if accompanied by any of the conduct proscribed in that statute (e. g. profanity, etc.), the otherwise protected rights can, indeed, qualify for prosecution and conviction. In this sense the Wisconsin disorderly conduct statute cannot be said to regulate expression. In my opinion, the Wisconsin statute and the Givens interpretation thereof do not authorize an encroachment on first amendment guarantees. Neither in Givens nor in the case at bar is there any reason to believe that the cause espoused by the demonstrators or the contents of the views expressed by them constituted any part of their offense. Upon this interpretation the “possible applications” approach announced in several U. S. supreme court decisions is not involved. N.A.A.C.P. v. Button (1963), 371 U.S. 415, 432, 83 S.Ct. 328, 9 L.Ed.2d 405; Winters v. People of State of New York (1948), 333 U.S. 507, 514, 68 S.Ct. 665, 92 L.Ed. 840.
In People v. Turner (1966), 17 N.Y. 2d 829, 271 N.Y.S.2d 274, 218 N.E.2d 316, the New York court of appeals held that the New York disorderly conduct statute was not uneontitutionally vague as applied to a case in which there was shouting and screaming at a street meeting. On May 8, 1967, the U. S. supreme court dismissed a writ as improvidently granted in the Turner Case. Two justices dissented in part upon the ground that first amendment rights were impaired by a “fuzzy” application of the New York disorderly conduct statute. In another recent development, the U. S. supreme court denied review in Burbridge v. State of California, 386 U.S. 1030, 1031, 87 S.Ct. 1475, 18 L.Ed.2d 591, which was a case in which sit-in demonstrators who were convicted of unlawful assembly or disturbing the peace were held to be not entitled to state habeas corpus.
The plaintiffs urge that there is an abuse of their rights in the manner in which the statute has been applied in this case. In Dombrowski v. Pfister (1965), 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22, there was a threatened prosecution of a civil rights organization under a Louisiana statute which was restrained in the light of allegations that rights of free expression under the first and fourteenth amendments would be violated by the state’s prosecution. In view of Dombrowski, a federal court may consider whether a state prosecution projects a threatened trespass upon federally protected rights. I conclude that there is no justification in the case at bar to foreclose the state courts from conducting their normal adjudication of the constitutional defenses which have been raised in this case.
Dombrowski requires a federal court to enjoin threatened state prosecution when there is reason to believe that the state’s action will have a “chilling effect” upon a citizen’s exercise of his rights under the first and fourteenth amendments. In that manner, the case preserves the viability of dissent within a free society. However, I do not inter-pert Dombrowski as directing a federal court to use its injunctive power to stay state proceedings in the absence of reason to believe that there is or will be such an abuse.
[136]*136There is a difference between allegation of wrong and evidence or color of wrong. Rights guaranteed under the first amendment are “not absolute at all times and under all circumstances.” Chaplinsky v. State of New Hampshire (1942), 315 U.S. 568, 571, 62 S.Ct. 766, 769, 86 L.Ed. 1034. In Cox v. State of Louisiana (1965), 379 U.S. 536, 554, 85 S.Ct. 453, 464, 13 L.Ed.2d 471, Mr. Justice Goldberg said:
“The rights of free speech and assembly, while fundamental in our democratic society, still do not mean that everyone with opinions or beliefs to express may address a group at any public place and at any time. The constitutional guarantee of liberty implies the existence of an organized society maintaining public order, without which liberty itself would be lost in the excesses of anarchy.”
The materials presently before this court convince me that precipitous federal court interference with the enforcement of Wisconsin’s disorderly conduct statute in the cases at bar would be an unwise intrusion upon Wisconsin’s good faith administration of its criminal laws.
The plaintiffs have alleged bad faith on the part of the defendants. They also claim that irreparable injury will result from their being prosecuted. In my view, notwithstanding these allegations, there are no special circumstances to justify short-cutting the normal adjudication of the constitutional defenses which may be advanced in the course of a criminal prosecution.
In view of the fact that the plaintiffs have failed to show that the Wisconsin statute is unconstitutional on its face and, further, in view of a reluctance to grant injunctive relief upon the showing which has been made in this case, I do not believe that it is necessary to resolve the abstention question presented by the application of 28 U.S.C. § 2283. The so-called anti-injunction statute provides as follows:
“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.”
It is urged that 42 U.S.C. § 1983, the Federal Civil Rights Act, permits a federal court to grant injunctions under Sec. 2283. Notwithstanding Goss v. State of Illinois (1963), 7 Cir., 312 F.2d 257 and Smith v. Village of Lansing (1957), 7 Cir. 241 F.2d 856, the plaintiffs contend that the Dombrowski Case permits the federal courts to enjoin proceedings in state courts. However, in a footnote at P. 484 in the Dombrowski Case, the court stated that such question was left undecided. Cf. Cameron v. Johnson, (1965), 381 U.S. 741, 85 S.Ct. 1451, 14 L.Ed.2d 715. In my view, it is not necessary to determine in this case whether Sec. 1983 is an exception to Sec. 2283.
Although the matter was presented at the hearing in terms of an application for interlocutory injunction, the reasons for which such application is denied would inexorably require denial of a permanent injunction and declaratory relief as well. I believe that judgment should be entered denying the application for interlocutory injunction, vacating the temporary restraining order, and dismissing the action on its merits.