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June 22, 1970

LONG ISLAND VIETNAM MORATORIUM COMMITTEE, Nassau Council of Women Strike for Peace, Barbara Spadanuta, Mae Neuberger, Rhoda Seidel, and Barbara Shack, Plaintiffs,
William CAHN, District Attorney, Nassau County, and Eugene Nickerson, County Executive, Nassau County, Defendants

The opinion of the court was delivered by: MOORE

MOORE, Circuit Judge.

The plaintiffs in this action, the Nassau Council of Women Strike for Peace, the Long Island Vietnam Moratorium Committee and four individuals belonging to or in sympathy with the organizational plaintiffs have followed for some time a course of concerted opposition to the United States military presence in Viet-Nam through a variety of peaceful public protest activities. A part of their campaign has been the distribution of emblems or buttons to be displayed on the clothing and of decals designed for display in automobile windows. The decal (see appendix) and button are of the same design: a black circle, within which are several horizontal alternating red and white stripes which cover three of the four quadrants of the design. In the upper left quadrant are seven white stars on a blue field. In the center of the circle is a vertical black line extending from top to bottom and from the center point of the line are two radial black lines running at 45-degree angles to the rim of the circle. Thus the design gives the general impression of a black circle and a geometric design (slightly resembling an inverted trident) with a red, white and blue background which might be taken for a section of an American flag. On oral argument it was represented by plaintiffs that the black circle and trident is the offical insignia of the Committee for a Sane Nuclear Policy and that it is generally recognized as the "peace symbol."

On January 15, 1970, the defendant William Cahn, District Attorney of the County of Nassau, New York, called a press conference for the purpose of announcing that, beginning the following Monday, he would, on the complaint of any person, criminally prosecute anyone wearing or displaying the emblems described above, which had been widely distributed by plaintiffs. In his announcement, Cahn declared that these and similar emblems using recognizable representations of the American flag in conjunction with expressions of political or para-political ideology are in violation of section 136(a) of the New York General Business Law (McKinney's Consol. Laws, c. 20). That subsection makes it a misdemeanor, punishable by up to a year in jail or a fine of $1,000 for any person to

* * * [in] any manner, for exhibition or display, * * * place or cause to be placed, any word, figure, mark, picture, design, drawing, or any advertisement, of any nature upon any flag, standard, color, shield or ensign of the United States of America, or the state of New York, or * * * expose or cause to be exposed to public view any such flag, standard, color, shield or ensign, upon which * * * shall have been printed, painted or otherwise placed, or to which shall be attached, appended, affixed or annexed, any word, figure, mark, picture, design, or drawing, or any advertisement of any nature, * * *

 Other subsections of the statute are specifically directed at physical uses of the flag, as defined in the section, which tend to "cast contempt upon" the American flag. *fn1" The statute also prohibits raffling or placing in pawn any such flag or representation thereof, *fn2" as well as public use of it as a receptacle for depositing or collecting money. *fn3"

 Immediately upon hearing the District Attorney's announcement, plaintiffs requested and obtained a federal court order requiring defendant Cahn to show cause why he should not be enjoined from carrying out his announced intention to prosecute those wearing plaintiffs' buttons and from further threatening such prosecution. Upon motion of the plaintiffs for the convocation of a three-judge district court pursuant to 28 U.S.C. §§ 2281 and 2284, this court was appointed to hear and determine the issues.

 The action is authorized by the Civil Rights Act, 42 U.S.C. § 1983; federal jurisdiction is conferred by 28 U.S.C. § 1343(3); and the declaratory and injunctive relief sought is authorized by 28 U.S.C. § 2201 et seq.

 The complaint (amended), couched in terms of a class action alleges in substance that the button or symbol in question is meant to indicate that the wearer desires the immediate cessation of American military operations in Viet Nam; that the individual plaintiffs wish to continue to display the symbol; and that the threat of prosecution has the effect of dissuading (1) large numbers of the plaintiff class from displaying the symbol and (2) the Committee from continuing to distribute it.

 The relief sought is a declaration that the display and distribution of the symbol is "constitutionally protected conduct which may not be the subject of any criminal prosecution and that, to the extent that Section 136 of the General Business Law purports to authorize such a prosecution, it is unconstitutional." In their amended complaint, plaintiffs also requested "injunctive relief to prevent further deprivation under color of Section 136" of their constitutional rights including "a final injunction ordering the defendant, CAHN, and his agents to cease and desist from commencing any prosecution against any person as a result of such person's exhibiting or distributing the symbol in question, or any similar symbol designed to dramatize the wearer's political beliefs, in Nassau County." Subsequent to the commencement of these proceedings, however, the defendant agreed to refrain from commencing prosecutions under Section 136(a) during the pendency of this case, and further expressed his willingness to abide by the determination of this court with regard to the merits of the controversy. On that pledge, plaintiffs have represented that "no present need for equitable relief appears to exist," and we agree. However that representation cannot be construed to alter the basic nature of the complaint, which is a request for relief from further prosecution and threatened prosecution under the contested statute. We have no reason to believe that relief will not be forthcoming by virtue of the District Attorney's voluntary agreement to abide by our decision. If, as plaintiff suggests, "changed circumstances require the exercise of equitable jurisdiction," we have the power to compel restraint from prosecution, Dombrowski v. Pfister, 380 U.S. 479, 85 S. Ct. 1116, 14 L. Ed. 2d 22 (1965), and we may retain jurisdiction to grant injunctive relief if the need should arise.

 Therefore we do not consider the representations of the parties to amount to a withdrawal of a request for injunctive relief, without which, of course, this three-judge court would have no jurisdiction, 28 U.S.C. § 2281; see Swift & Co. v. Wickham, 382 U.S. 111, 86 S. Ct. 258, 15 L. Ed. 2d 194 (1965); Flemming v. Nestor, 363 U.S. 603, 607, 80 S. Ct. 1367, 4 L. Ed. 2d 1435 (1960). There being a continuing request for injunctive relief should circumstances require it, we have jurisdiction pursuant to § 2281 to decide the issues. Straut v. Calissi, 293 F. Supp. 1339 (D.N.J. 1968). For the reasons given below, we hold that the threatened prosecutions cannot be carried out.


 The federal courts cannot stand at the elbows of law enforcement officers duly elected by the appropriate subdivisions of the States and advise them as to the exercise of their respective judgments in the enforcement of laws which they have sworn to uphold. At the same time our citizens are entitled not to be threatened with prosecution because of a particular interpretation given to a somewhat ambiguous statute by a prosecutor whose views on public issues may differ from others. The wielding of such individual power approaches too closely that exercised in the so-called totalitarian countries.

 In this case both plaintiffs and the District Attorney have acted in conformity with the best precepts of our "law and order" society. Before taking any action which might have led to violence and arrest, they have sought an adjudication of their respective rights from the courts. Although the courts are by no means infallible, they can at least, where the circumstances warrant, give their best judgment with respect to the specific problem posed.

 The challenged subsection of section 136 has never been interpreted by the New York courts; indeed as far as we are aware, subsection (a) has never been invoked in a criminal prosecution. In consideration of our view that the statute involved here is somewhat ambiguous, the question arises of abstention in order to give to the state courts an opportunity to construe the statute in the light of plaintiffs' fears. However, the Supreme Court's opinion in Zwickler v. Koota, 389 U.S. 241, 88 S. Ct. 391, 19 L. Ed. 2d 444 ...

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