Golden v. Zwickler

Following reversal on state law grounds of appellee's conviction of violating a New York statute by distributing anonymous handbills in connection with the 1964 congressional election, appellee in 1966 sought a declaratory judgment in the District Court that the statute was unconstitutional. Appellee alleged that he intended to distribute the 1964 handbill and "similar anonymous leaflets" in connection with the forthcoming 1966 election (when, it was alleged, the Congressman would stand for re-election), and in subsequent elections. The District Court abstained from passing on appellee's claim for a declaratory judgment. This Court on appeal held that such abstention was error and remanded the case for resolution of the declaratory judgment issue. Zwickler v. Koota, 389 U.S. 241. The Court held that on the remand appellee would have to "establish the elements governing the issuance of a declaratory judgment," noting as relevant to that question that the Congressman who had been the target of appellee's handbills had meanwhile been elected to the Supreme Court of New York. On remand, the District Court, without hearing evidence on the existence of the elements governing the issuance of a declaratory judgment, held that the essential elements to this relief existed "[w]hen this action was initiated" and that it was immaterial that the Congressman would not be a candidate for re-election, and concluded that the statute impinged on appellee's freedom of speech by deterring him from again distributing anonymous handbills.

Held:

1. In the field of declaratory judgments as elsewhere constitutional issues cannot be adjudicated except in actual cases presenting concrete legal issues. P. 108.

2. Since the New York statute prohibits only anonymous handbills directly pertaining to election campaigns and it was wholly conjectural that another occasion might arise when appellee would be prosecuted for distributing the handbills referred to in the complaint because his sole concern related to a Congressman who would not likely be a candidate again, the controversy here lacked "sufficient immediacy and reality" to warrant issuance of a declaratory judgment. Pp. 109-110.

290 F.Supp. 244, reversed and remanded.

Samuel A. Hirshowitz, First Assistant Attorney General of New York, argued the cause for appellant. With him on the brief were Louis J. Lefkowitz, Attorney General, and Brenda Soloff, Assistant Attorney General.

Emanuel Redfield argued the cause and filed a brief for appellee.

Joseph B. Robison and Beverly Coleman filed a brief for the American Jewish Congress, as amicus curiae, urging affirmance.