November 23, 1996 Mr. Schlagler, who is said to be a "skinhead," while in the Village Cafe in Monroe, New York, placed stickers inside the Cafe and on the back of one of the Cafe's patrons. The stickers presented an image which was, and was intended to be racist, derogatory and inflammatory.
An employee of the Cafe, who had to escort Mr. Schlagler from the premises, was offended and alarmed by the content of the sticker. He subsequently filed a criminal complaint against Mr. Schlagler with an officer of the Town of Monroe Police Department. The criminal charge against Mr. Schlagler is pending in the Town Justice Court of the Town of Monroe and is scheduled for trial on January 19, 1998. Mr. Schlagler alleges that the statute is unconstitutional and that the criminal prosecution is in retaliation for his exercise of his First Amendment right to freedom of speech as reflected in the content of the sticker. He seeks declaratory and injunctive relief pursuant to 42 USC § 1983.
I. Younger Abstention
In Younger v. Harris, 401 U.S. 37, 91 S. Ct. 746, 27 L. Ed. 2d 669 (1971), the Supreme Court announced a strong policy against federal courts enjoining pending state court criminal prosecutions. The Court held that "the basic doctrine of equity jurisprudence [is] that courts of equity should not act, and particularly should not act to restrain a criminal prosecution, when the moving party has an adequate remedy at law and will not suffer irreparable injury if denied equitable relief." 401 U.S. at 43-44, 91 S. Ct. at 750. The Supreme Court in Younger found that the plaintiff in that case had an adequate remedy as he could have raised his constitutional claims (that the California statute at issue in that case violated the First and Fourteenth Amendments) as a defense in the state court. The Supreme Court has also held that where injunctive relief would be barred by the principles in Younger, declaratory relief should be denied as well. Samuels v. Mackell, 401 U.S. 66, 73, 91 S. Ct. 764, 768, 27 L. Ed. 2d 688 (1971).
II. "Bad Faith" Exception to Younger
Mr. Schlagler argues that because this prosecution has been brought in retaliation for his exercise of his First Amendment right to free speech and based on the content of his speech, the case falls within the "bad faith" exception to the Younger abstention doctrine. In the Younger context "bad faith" generally means that a prosecution is brought without a reasonable expectation of obtaining a conviction, Kugler v. Helfant, 421 U.S. 117, 126 n.6, 95 S. Ct. 1524, 1531, 44 L. Ed. 2d 15 (1978). "Bad faith" is also present if the prosecution is brought for the purpose of retaliation or deterring constitutionally protected conduct. See Cullen v. Fliegner, 18 F.3d 96, 103-04 (2d Cir. 1994) cert. denied sub nom, Tuxedo Union Free School Dist. v. Cullen, 513 U.S. 985, 115 S. Ct. 480, 130 L. Ed. 2d 393 (1994). ("[A] refusal to abstain is also justified where a prosecution or proceeding has been brought to retaliate for or to deter constitutionally protected conduct, or where a prosecution or proceeding is otherwise brought in bad faith or for the purpose to harass. . . In such cases a showing of retaliatory or bad faith prosecution establishes irreparable injury for purposes of the Younger doctrine.")
In Cullen our Court of Appeals required a showing of bad faith. 18 F.3d at 104. While plaintiff presents no evidence of subjective bad faith by Mr. Phillips, he contends that because the statute is unconstitutional on its face, enforcement of the statute automatically chills his First Amendment rights
Plaintiff argues that "all of the documents filed with the Town of Monroe Criminal Court, including the accusatory instrument, make clear that plaintiff is being prosecuted for the content of his pure First Amendment speech." This Court agrees and concedes that the "bad faith" exception to the Younger doctrine therefore applies. Because of the important First Amendment interests that § 240.30(1) places at risk, the Court declines to abstain in this case. The New York Courts have already rejected similar efforts to prosecute for content under § 240.30(1), thus lending force to defendants' challenge to the statute. In People v. Dupont, 107 A.D.2d 247, 253, 486 N.Y.S.2d 169, 175 (1st Dept. 1985), the New York Appellate Division First Department reviewed the background of Penal Law § 240.30(1):
The harassment statute, in its various formulations, including the present codification, does not appear to have been relied upon as the basis for punishing any but annoying and harassing communications transmitted directly to the complainant. It was not designed to prevent dissemination, let alone the publication of vexatious material about an individual.
Id., 107 A.D.2d 247, 251, 486 N.Y.S.2d 169, 173.
In Dupont, the Appellate Division, First Department held that because the preferred position of the First Amendment freedoms is beyond dispute, "First Amendment freedoms must be given weighty consideration in balancing them against the interests underlying challenged statutes. The right to raise such an issue transcends the parties and controversies in the litigation." 107 A.D.2d 247, 253, 486 N.Y.S.2d 169, 174. While finding the statute on its face inapplicable to DuPont's conduct, the Appellate Division went on to find that "the distribution of literature, offensive thought it may be was "plainly not within the hard core of the statute's proscriptions," and that if read to apply to constitutionally protected speech, the statute is void for vagueness.
Penal Law § 240.30(1) is over broad as well as vague. It is unclear what type of communication would be considered to be initiated "in a manner likely to cause annoyance or alarm" to another person. As the First Department stated in Dupont :
In order to insure that such a statute may not chill the rights of others, the parties against whom the statute may constitutionally be applied will have standing to challenge it for overbreadth. Thus, in such cases there is 'no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with the requisite narrow specificity.' Dombrowski v. Pfister, 380 U.S. 479, 486, 85 S. Ct. 1116, 1121, 14 L. Ed. 2d 22. On this basis a litigant may challenge a statute, not because his own rights of free expression are violated, but because of the danger that the statute's very existence may cause others not before the court, to refrain from constitutionally protected speech or expression. Broadrick, 413 U.S. 601 at 612, 93 S. Ct. 2908 at 2915, 37 L. Ed. 2d 830.