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June 26, 1968

George SAMUELS, Abraham C. Taylor, Herman Benjamin Ferguson, Arthur Harris, Mandola McPherson, Max Stanford, Merle Stewart, Hampton Woodward Rockward, Ursula Virginia West and Milton Ellis, Plaintiffs,
Thomas J. MACKELL, District Attorney of Queens County, and Louis J. Lefkowitz, Attorney General of the State of New York, Defendants. Fred FERNANDEZ, Plaintiff, v. Thomas J. MACKELL, District Attorney of Queens County, and Louis J. Lefkowitz, Attorney General of the State of New York, Defendants

The opinion of the court was delivered by: FRIENDLY

FRIENDLY, Circuit Judge:

Plaintiffs in these consolidated actions *fn1" are the subjects of a superseding indictment filed by a grand jury in the Supreme Court for Queens County, New York. The indictment contains 48 counts, many of these being against only one or some of the plaintiffs. Forty-one counts charge violations of former New York Penal Law, McKinney's Consol. Laws, c. 405 § 1897 *fn2" relating to the possession of weapons. Another count alleges conspiracy to commit arson in the third degree, Penal Law § 223. What concerns us are counts charging criminal anarchy.

 The first count alleges advocacy of criminal anarchy in violation of §§ 160 and 161, subd. 1, see fn. 4, in that defendants advocated orally and in writing the overthrow of the governments of the State and its political subdivisions "by force and violence, to wit, the use of rifles, shotguns, firearms, bombs and ignited gasoline against publicly owned and operated transportation facilities, and against executive officials of said State and its various political subdivisions and agencies, including peace officers thereof, and by assassination of said executive officials, and by other unlawful means and with the further intent that said acts be presently attempted and accomplished." The second count asserts that, in violation of §§ 160 and 161, subd. 2, defendants published and circulated certain printed matter urging the violent overthrow of the State and its political subdivisions and agencies "by force and violence, to wit, by sabotage of public transportation and communication facilities, assassination of police officers of said State and its various political subdivisions and agencies, and members of the State Guard of said State, and by other unlawful means, and with the further intent that said acts be presently attempted and accomplished." The third count charges that, in violation of §§ 160 and 161, subd. 4, defendants organized and helped to organize and became members of and voluntarily assembled with each other in a society formed to teach and advocate the doctrine that the governments of New York and its various political subdivisions and agencies be overthrown by force and violence as described in the first count. The fourth count alleges a conspiracy to commit the crime alleged in the first three, Penal Law § 580. Two other counts charge that Samuels and Stewart permitted premises to be used for the assemblage of persons assembled for the purpose of advocating and teaching that the governments of the State and its various political subdivisions and agencies should be overthrown by force and violence.

 The complaints, based in part upon the Civil Rights Act, 42 U.S.C. § 1983, seek an injunction against prosecution under the indictment or, alternatively, a declaratory judgment of invalidity, on the grounds that the New York criminal anarchy statute, Penal Law §§ 160, 161 and 163, violated the First Amendment of the Constitution of the United States, made applicable to New York by the Fourteenth, and entered an area exclusively occupied by the Federal Government, see Com. of Pennsylvania v. Nelson, 350 U.S. 497, 76 S. Ct. 477, 100 L. Ed. 640 (1956). They also attack § 596, subd. 3 of New York's Judiciary Law, McKinney's Consol.Laws, c. 30, requiring that a juror "be the owner, in his or her own right, of real or personal property of the value of two hundred and fifty dollars; or the husband of a woman or wife of a man who is the owner, in his or her own right, of real or personal property of that value" as violating requirements of the Federal Constitution that a person may be indicted only by a grand jury representing a fair cross-section of the community, *fn3" and § 596, subd. 6, now § 596, subd. 5, of the Judiciary Law in that it furnished no definable standards as to how grand jurors were to be selected. The defendants answered, seeking dismissal of the complaints. Finding that the complaints raised substantial questions under the Constitution, Judge Bryan requested the convocation of a court of three judges, 28 U.S.C. §§ 2281 and 2284. We now have before us motions by the plaintiffs both for a preliminary injunction against continuation of the prosecution and for summary judgment.

 The New York criminal anarchy statute is an old one, going back to 1902. Its enactment was a response to the assassination of President McKinley in Buffalo the preceding year, see People v. Gitlow, 234 N.Y. 132, 156, 136 N.E. 317 (1922) (dissenting opinion of Judge Pound). The language was very broad. Section 160 defined criminal anarchy:

Criminal anarchy is the doctrine that organized government should be overthrown by force or violence, or by assassination of the executive head or of any of the executive officials of government, or by any unlawful means.

 and made "the advocacy of such doctrine either by word of mouth or writing" a felony, without, however, prescribing a penalty. Section 161 *fn4" spelled out various types of acts within this general concept which constitute felonies punishable by imprisonment for not more than 10 years, fine of not more than $5000, or both. Section 162 forbade assemblages of two or more persons for advocating or teaching criminal anarchy, and § 163 forbade permitting such an assemblage - this being a misdemeanor punishable by imprisonment for not more than 2 years, fine of not more than $2000, or both. Under the new Penal Law, effective September 1, 1967, the various criminal anarchy sections are combined in a single provision reading as follows:

§ 240.15 Criminal anarchy
A person is guilty of criminal anarchy when (a) he advocates the overthrow of the existing form of government of this state by violence, or (b) with knowledge of its contents, he publishes, sells or distributes any document which advocates such violent overthrow, or (c) with knowledge of its purpose, he becomes a member of any organization which advocates such violent overthrow.

 Plaintiffs mount a double-barreled attack on the old statute. They say that although its constitutionality was sustained in Gitlow v. New York, 268 U.S. 652, 45 S. Ct. 625, 69 L. Ed. 1138 (1925), over a dissent by Justices Holmes and Brandeis, later decisions of the Supreme Court, notably Dennis v. United States, 341 U.S. 494, 507-511, 71 S. Ct. 857, 95 L. Ed. 1137 (1951), and Yates v. United States, 354 U.S. 298, 318-319, 77 S. Ct. 1064, 1 L. Ed. 2d 1356 (1957), render it plain that Gitlow has been overruled and that a statute making the teaching or advocacy of anarchy a crime can be constitutional only if limited to those words or acts aimed at the violent overthrow of government which, as said in Schenck v. United States, 249 U.S. 47, 52, 39 S. Ct. 247, 63 L. Ed. 470 (1919), create "a clear and present danger that they will bring about the substantive evils" the legislature "has a right to prevent" - as, indeed, the New York Court of Appeals has recently recognized. People v. Epton, 19 N.Y.2d 496, 281 N.Y.S.2d 9, 227 N.E.2d 829 (1967), cert. denied and appeal dismissed for want of a substantial federal question, 390 U.S. 29, 88 S. Ct. 824, 19 L. Ed. 2d 808 (1968). They add that the unconstitutionality of §§ 160-163 would not be removed even if - as they dispute - the instant indictment required proof of facts within the Schenck-Dennis formulation, since the overbreadth of the statute would have a "chilling effect" on persons desiring to engage in teaching or advocacy in the area between the central core that might be constitutionally forbidden and the broader circumference to which the statute extends. For this they find support in such decisions of the Supreme Court as Dombrowski v. Pfister, 380 U.S. 479, 85 S. Ct. 1116, 14 L. Ed. 2d 22 (1965), and Keyishian v. Board of Regents, 385 U.S. 589, 87 S. Ct. 675, 17 L. Ed. 2d 629 (1967), and in decisions of three judge courts invalidating the Mississippi, Kentucky and California Criminal Syndicalism Acts. Ware v. Nichols, 266 F. Supp. 564 (D.Miss.1967); Baker v. Bindner, 274 F. Supp. 658 (W.D.Ky.1967); Harris v. Younger, 281 F. Supp. 507 (C.D.Cal.1968). They contend in addition that the language of the former New York statute was broad enough to include teaching or advocating the overthrow of the Federal Government, a field held in Pennsylvania v. Nelson, supra, to have been preempted against the states by the Smith Act, 18 U.S.C. § 2385; indeed they point to a passage in one of the two majority opinions of the Court of Appeals in Gitlow which construed New York's criminal anarchy statute as extending that far, 234 N.Y. at 138, 136 N.E. 317 (opinion of Judge Crane). Against the point that the superseding indictment charged only attempting to overthrow state and local governments, they again argue overbreadth.

 The State responds that, however all this might have been if the case had come to us some years back, plaintiffs' arguments are drained of their force by the decision of the Court of Appeals in Epton. Taking note of constitutional development in the forty-five years since its decision in People v. Gitlow, supra, that court, with Judge Burke dissenting, reinterpreted the criminal anarchy statute "in accordance with sound constitutional principles so as to preserve its constitutionality." 19 N.Y.2d at 505, 281 N.Y.S.2d at 16, 227 N.E.2d at 834. It held that the statute must be read as requiring not merely advocacy or teaching of violent overthrow of the government by force and violence but an intent to accomplish the overthrow and a "clear and present danger" that the advocated overthrow may be attempted or accomplished. 19 N.Y.2d at 506, 281 N.Y.S.2d at 17, 227 N.E.2d 829. *fn5" It held also, as we read the opinion, 19 N.Y.2d at 507, 281 N.Y.S.2d at 17-18, 227 N.E.2d 829, that, as the new Penal Code makes plain, the old statute also must be confined to attempted overthrow of the government of New York or a local subdivision, thereby saving it from successful attack on preemption grounds, Uphaus v. Wyman, 360 U.S. 72, 76-77, 79 S. Ct. 1040, 3 L. Ed. 2d 1090 (1959); DeGregory v. Att'y General of New Hampshire, 383 U.S. 825, 829-830, 86 S. Ct. 1148, 16 L. Ed. 2d 292 (1966).

 Far from welcoming this restriction of the area of permissible prosecution under the criminal anarchy statute, the plaintiffs protest it. They contend that the Court of Appeals had no power in 1967 to give the statute a narrower reading than the same court had found in 1922 to be the intent of the legislature of 1902. We do not understand why; it seems quite reasonable for the court to have ruled that if the 1902 legislature had known it could not have all it wanted, it would have wanted all it could have. Time and again the Supreme Court has narrowed the language of Congressional acts to save their constitutionality, see. e.g., Schneiderman v. United States, 320 U.S. 118, 63 S. Ct. 1333, 87 L. Ed. 1796 (1943), Bridges v. Wixon, 326 U.S. 135, 65 S. Ct. 1443, 89 L. Ed. 2103 (1945), and, most notably in the present context, in the case of the Smith Act whose language is nearly identical with the New York statute, see Dennis v. United States, supra, 341 U.S. at 502-511, 71 S. Ct. 857, 95 L. Ed. 1137. We are unable to discern why an earlier broader reading should bar that course. In any event if the Court of Appeals transcended the powers vested in it by the people of New York by narrowing its previous construction of the criminal anarchy statute, which we in no way intimate, this would be entirely a matter of state law and not one of federal concern.

 Plaintiffs argue further, relying particularly on Dombrowski v. Pfister, supra, that, even if Epton would be a sufficient answer as to future criminal activity, the New York statute had not been thus narrowed to constitutionally permissible limits when most of the acts charged in the indictment were committed. The State counters that Dombrowski dealt with a situation where the statute could be brought within acceptable limits only "through a series of criminal prosecutions, dealing as they inevitably must with only a narrow portion of the prohibition at any one time, and not contributing materially to articulation of the statutory standard," 380 U.S. at 491, 85 S. Ct. at 1123, 14 L. Ed. 2d 629. The Court, it says, there made clear it was speaking only of a case where "the conduct charged in the indictments is not within the reach of an acceptable limiting construction readily to be anticipated as the result of a single criminal prosecution," whereas here the Court of Appeals' adoption of the Supreme Court's reading of similar statutory language in Dennis was precisely such a construction and the acts are "the sort of 'hard-core' conduct that would obviously be prohibited under any construction." 380 U.S. at 491-492, 85 S. Ct. at 1124. The State caps its argument by citing a footnote in Dombrowski where the Court added, 380 U.S. at 491 n. 7, 85 S. Ct. at 1123:

Our cases indicate that once an acceptable limiting construction is obtained, it may be applied to conduct prior to the construction, see Poulos v. State of New Hampshire, 345 U.S. 395, 73 S. Ct. 760, 97 L. Ed. 1105; Cox v. New Hampshire, 312 U.S. 569, 61 S. Ct. 762, 85 L. Ed. 1049; Winters v. People of State of New York, 333 U.S. 507, 68 S. Ct. 665, 92 L. Ed. 840, provided such application affords fair warning to the defendants, see Lanzetta v. State of New Jersey, 306 ...

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