Lumbard, Chief Judge, and Waterman and Anderson, Circuit Judges.
This is an appeal from a judgment of the Eastern District of New York, sitting as a three-judge court convened pursuant to 28 U.S.C. §§ 2281 and 2284 which declared § 136(a) of the General Business Law of New York constitutional as properly applied, but held that it did not apply to plaintiffs' emblem -- a representation of the American flag on which is superimposed a symbol that resembles an inverted trident and is generally recognized as the traditional peace symbol.
Section 136(a) provides that it shall be a misdemeanor to display "any word, figure, mark, picture, design, drawing, or any advertisement" upon any "flag, standard, color, shield, or ensign of the United States of America."*fn1 The statute defines "flag," as used in this section to include
"any flag, standard, color, shield or ensign, or any picture or representation, of either thereof, made of any substance, or represented on any substance, and of any size, evidently purporting to be, either of, said flag, standard, color, shield or ensign, of the United States of America, or of the state of New York, or a picture or a representation of either thereof, upon which shall be shown the colors, the stars, and the stripes, in any number of either thereof, or by which the person seeing the same, without deliberation may believe the same to represent the flag, colors, standard, shield or ensign of the United States of America or of the state of New York."
We hold that § 136(a) is unconstitutional both on its face and as applied in this case.
On January 15, 1970, defendant William Cahn, the District Attorney of Nassau County, announced at a press conference that he would, on complaint of any person, prosecute under § 136(a) anyone displaying or distributing a representation of the American flag which has superimposed upon it any symbol, design, or word. He specifically mentioned as violative of the statute the emblem widely circulated by the plaintiff organizations and the individual plaintiffs in the form of a decal and a button. That emblem consists of a circular representation of the American flag, having seven stars in the upper lefthand corner and eleven stripes and colored red, white and blue, upon which the peace symbol is superimposed. (See Appendix.)
On January 19, plaintiffs obtained from Chief Judge Mishler of the Eastern District of New York an order directing D.A. Cahn to show cause why he should not be enjoined from carrying out his announced intention to prosecute those wearing plaintiffs' buttons and to show cause why a three-judge court should not be convened to determine plaintiffs' challenge to the constitutionality of § 136(a). The action was based on the Civil Rights Act, 42 U.S.C. § 1983. At this time Cahn promised that he would refrain from commencing prosecutions during the pendency of the federal proceedings. On January 27, Judge Bartels ordered the convocation of a three-judge court; that court consisted of Circuit Judge Moore, and District Judges Bartels and Travia.
On June 22, 1970, the district court issued its decision declaring § 136(a) constitutional as properly applied, but holding that it could not be applied to plaintiffs' emblem since that emblem did not constitute a flag. Judge Moore, writing for himself and Judge Bartels, stated that plaintiffs' emblem did not come within the proscription of § 136(a) because "it is the flag itself which the statute seeks to protect from physical alteration, and no attempt to alter an actual American flag is presented by the plaintiffs' buttons and decals." In reaching the decision, Judge Moore concluded that the New York Legislature in enacting § 136 could not possibly have intended that the statute should apply to the wearing or distribution of such emblems as those of the plaintiffs. Judge Travia, concurring in part and dissenting in part, agreed with the majority that the statute was constitutional, but believed that it clearly proscribed plaintiffs' emblem and that such a proscription was justified by the state's interest in protecting the integrity of the flag.
Since Cahn had pledged to respect the district court's decision pending appeal, that court issued no injunctive relief. Accordingly, Cahn appealed to us pursuant to the newly enunciated rule of Mitchell v. Donovan, 398 U.S. 427, 90 S. Ct. 1763, 26 L. Ed. 2d 378 (1970), in which the Supreme Court held that an order granting or denying only a declaratory judgment must be appealed to the Court of Appeals rather than to the Supreme Court. We affirm the district court's decision on the ground that § 136(a) is unconstitutional.
The first contention which appellant Cahn urges is that the district court should have abstained from deciding the case since it found § 136(a) susceptible of an interpretation which avoids the constitutional question. According to this argument, since the constitutional question can be avoided and hence the only question is one of statutory interpretation, the state courts -- which have not yet interpreted § 136(a) -- should have the first opportunity to interpret their own statute. In support of this contention, Cahn relies on Harrison v. N.A.A.C.P., 360 U.S. 167, 176, 79 S. Ct. 1025, 1030, 3 L. Ed. 2d 1152 (1959), in which the Supreme Court observed that
"no principle has found more consistent or clear expression than that the federal courts should not adjudicate the constitutionality of state enactments fairly open to interpretation until the state courts have been afforded a reasonable opportunity to pass upon them."
Cahn also argues that giving the state courts the first chance to interpret § 136(a) would cause no irreparable harm to the plaintiffs since he has promised to refrain from instituting prosecutions during the pendency of this case and would surely do the same if the district court applied the abstention doctrine and the plaintiffs promptly instituted an action in the state courts.
We reject these contentions as did all three judges below. The principle of abstention does not involve the abdication of federal jurisdiction, but only the postponement of its exercise. Harrison v. N.A.A.C.P., supra, at 177, 79 S. Ct. 1025. However, in cases involving a challenge that the statute is on its face unconstitutional, the delay of state court proceedings might itself cause an impermissible chilling of the very constitutional rights which the plaintiff seeks to protect. Zwickler v. Koota, 389 U.S. 241, 88 S. Ct. 391, 19 L. Ed. 2d 444 (1967); Dombrowski v. Pfister, 380 U.S. 479, 483-485, 85 S. Ct. 1116, 14 L. Ed. 2d 22 (1964). The Supreme Court has stated that "due respect" must be afforded a civil rights plaintiff's choice of forum for the vindication of his First Amendment rights, Zwickler v. Koota, supra, 389 U.S. at 247-248, 88 S. Ct. 391; and we stated in Holmes v. New York City Housing Authority, 398 ...