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May 6, 1968

Sanford ZWICKLER, Plaintiff,
Aaron E. KOOTA, as District Attorney of the County of Kings, Defendant

The opinion of the court was delivered by: ROSLING

ROSLING, District Judge.

 The mandate of the Supreme Court upon reversal in the context of its opinion *fn1" requires this three-judge court to determine whether the facts alleged in the plaintiff Zwickler's complaint disclose a controversy with the defendant District Attorney of sufficient substance to warrant the award of a declaratory judgment. Should we so hold we are called upon then to adjudicate whether the New York statute which plaintiff impugns is so "repugnant to the guarantees of free expression secured by the Federal Constitution" that it should be voided, with or without a grant of injunctive relief against its enforcement for future violation through criminal prosecutions hereafter brought.

 The subject statute is § 781-b of the Penal Law of New York State, McKinney's Consol.Laws, c. 40, as in force on April 22, 1966, the date of the inception of the action. *fn2" In broad outline, as pertinent to plaintiff's situation, the provision, now superseded without change by Election Law, McKinney's Consol.Laws, c. 17, § 457, made it a crime to distribute for another, among other things, any handbill in quantity which contained any statement concerning any candidate in connection with any election of public officers, unless there were printed thereon the name and post office address of the printer thereof and of the person at whose instance such handbill was so distributed. The penalties established for infraction were severe. A first offense was declared a misdemeanor; succeeding violations constituted felonies. *fn3"

 Zwickler was convicted of violating § 781-b by his distribution of anonymous handbills no more than mildly critical of a speech delivered on the floor of the House of Representatives by a United States Congressman who was at the time (1964) standing for re-election. The conviction was reversed by the New York Supreme Court, Appellate Term, on state law grounds. The memorandum on reversal stated that the constitutional question had not been reached. *fn4" The New York Court of Appeals affirmed without opinion, People v. Zwickler, 16 N.Y.2d 1069, 266 N.Y.S.2d 140, 213 N.E.2d 467.

 Zwickler next invoked the Federal District Court's jurisdiction under the Civil Rights Act, 28 U.S.C. § 1343, and the Declaratory Judgment Act, 28 U.S.C. § 2201, by bringing this action against the District Attorney of Kings County in which he sought a declaration that § 781-b was unconstitutional and an injunction against its enforcement.

 We must first decide whether the facts, set out in some detail below, present a controversy of sufficient immediacy to support action for declaratory judgment. We hold that they do and, hence, such declaration should be made.

 The statute reviewed is not one which has lapsed into "innocuous desuetude" through a legislature's prolonged disregard and "prosecutorial paralysis" so that the issue of its constitutionality is not here justiciable. We are not in Zwickler confronted as was the court in Poe v. Ullman, 367 U.S. 497, 81 S. Ct. 1752, 6 L. Ed. 2d 989 (1961), cited by defendant, with eighty years of inactivity on the part of state authorities in implementing the penal statute *fn5" which the plaintiff had exhumed and proffered to the court so that its invalidity might be declared and theoretical menace to plaintiffs abated. As basis for its rejection of plaintiff's plea for relief four justices of the court in Poe joined in the observation that the fact that the state "has not chosen to press the enforcement of this statute deprives these controversies of the immediacy which is an indispensable condition of constitutional adjudication." 367 U.S. at p. 508, 81 S. Ct. at p. 1758. The fifth justice whose concurrence was in the judgment alone does not in his brief memorandum evince a precise agreement with the language quoted.

 The thrust of Poe's plurality opinion is in effect that whatever private conduct the several plaintiffs originally contemplated taking was in no realistic sense inhibited by the existence of a statute which by "tacit agreement" the Connecticut prosecutors had undertaken not to enforce. The court in a collateral threat of such tenuity could find no significant deprivation by the state of life and liberty without due process of law.

 It is otherwise where claims of abridgment of First Amendment freedoms to speak and publish are in question. The chill of a penal restraint on utterance blights those freedoms by its mere presence. "These freedoms are delicate and vulnerable, as well as supremely precious in our society. The threat of sanctions may deter their exercise almost as potently as the actual application of sanctions." N.A.A.C.P. v. Button, 371 U.S. 415, 433, 83 S. Ct. 328, 338, 9 L. Ed. 2d 405 (1963). "The chilling effect upon the exercise of First Amendment rights may derive from the fact of the prosecution, unaffected by the prospects of its success or failure." Dombrowski v. Pfister, 380 U.S. 479, 487, 85 S. Ct. 1116, 1121, 14 L. Ed. 2d 22 (1965).

 While reported prosecutions under § 781-b have been infrequent, *fn6" this is not necessarily the measure of the effectiveness of the statute to rein in dissent.

 A brief review of § 781-b in its mutations as successive legislatures from time to time revisited and strengthened the provision offers proof of the abiding faith of the law makers in its inhibitory force upon those whom it was intended to chasten. In its most recent form it survived, as Election Law § 457, a massive elision from the Penal Law of what was dead-letter and obsolete, and the effective date, a scant six months removed, betokens a censorial force that is far from spent.

 As a penal neophyte (added by the L.1941, c. 198, effective Sept. 1, 1941,) the provision interdicted anonymity in respect of political literature which touched only the election of public officers and of candidates for nomination to public office.

 Effective April 19, 1957, an amendment (L.1957, c. 717), brought within its lengthening reach the humble post card, and broadened obligatory self-disclosure to sponsorship of matter relative to propositions and amendments of the State Constitution to be voted upon at general elections.

 An amendment enacted in 1962 by chapter 576 effective September 1st of the same year generated the version of the law to which the complaint sub jud. is addressed. The scope of the provision was by such amendment widened so that it would thereafter encompass within its roster of potential felons anonymous publishers and distributors, whereas earlier only printers and reproducers of what was circulated had been menaced. The circle of eligible beneficiaries of the statute as amended was, moreover, enormously expanded, for this was now to include party officials and candidates for party position as well.

 Recodification of the 1966 Penal Law, earlier adverted to, brought in its wake redistribution of many special provisions found therein, and, not inappropriately, as part of these shiftings of locale, § 781-b was translated unchanged to its current situs in the Election Law. *fn7" The continuing vitality of legislative purpose is made manifest by such reenactment.

 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. Zwickler had been arrested as he stood in a public street the week before the election, distributing handbills. *fn8" Their content was germane to the current political campaign. His had been a "citizen's arrest" made by an attorney-member of a political club located a scant 150 feet distant from where Zwickler had stationed himself to make such distribution. The Congressman-candidate was the district leader, - the office is an elective party position -, of this club. The attorney was a precinct captain of that club. He testified to the incident as follows:

He had asked Zwickler
"[who] gave you the authority to hand out, who printed this literature, who is the name of the sponsor?" He said, 'none of your business.'"
* * *
"I said, well you know, you are violating the law. He said, if I am violating the law why'nt you have me arrested, so I said, well, I asked Mr. Levine to go and get an officer and asked the officer to make this civil arrest. They called the police station. The lieutenant and the sergeant came down with a police car and finally he consented to go into the police car and we went down to the police station and I made this arrest. When I came down there I said if he gives me his name and address and who sponsored this literature I will not make the complaint and he refused to do that and the lieutenant had no other alternative but to book him on this charge."

 The charge was prosecuted on behalf of the state by an Assistant District Attorney of the county. Although the "offense" was committed on October 29, 1964, the case was not tried until December 11, 1964, weeks after the general election had been held. More weeks elapsed before, on February 10, 1965, Zwickler was adjudged guilty and sentenced. The punishment meted out by the court was 30 days imprisonment in the Workhouse. Sentence was suspended but its menace hung over him. For a like offense subsequently committed § 782 admonished him that he would be indictable on a felony charge.

 In the appeal to the Appellate Term of the Supreme Court which followed, the state as respondent continued to be represented by the District Attorney. That court on April 23, 1965, reversed and dismissed, but explicitly failed to reach the question of constitutionality (see supra p. 246 and footnote appended). The prosecutor yet gave no hint of any abating of zeal. Further appellate consideration was not automatic, but was ...

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