Zwicker v. Boll/Dissent Douglas

Mr. Justice DOUGLAS, dissenting.

Appellants are graduate and undergraduate students at the University of Wisconsin and are active in student political and civil rights organizations. They brought an action in the District Court for the Western District of Wisconsin, seeking a declaratory judgment that the Wisconsin disorderly conduct statute is overbroad and therefore unconstitutional on its face, or an injunction restraining state criminal prosecutions under that statute which were pending against them.

Appellants alleged in their complaint that preceding their arrests they were engaged only in peaceful and constitutionally protected protest activities. Appellants were protesting against American policy in Vietnam. The arrests were made in various buildings of the University of Wisconsin in which appellants and others had gathered to object to a chemical manufacturer of napalm being permitted to conduct employment interviews in the buildings. Appellants were arrested under a 'disorderly conduct' statute. We know that such statutes historically have been used in reprisal against unpopular groups or persons who espouse unpopular causes. Cf. Brown v. State of Louisiana, 383 U.S. 131, 86 S.Ct. 719, 15 L.Ed.2d 637; Cox v. State of Louisiana, 379 U.S. 536, 85 S.Ct. 453, 13 L.Ed.2d 471; Taylor v. State of Louisiana, 370 U.S. 154, 82 S.Ct. 1188, 8 L.Ed.2d 395; Garner v. State of Louisiana, 368 U.S. 157, 82 S.Ct. 248, 7 L.Ed.2d 207. But that is a practice no longer permissible now that the First Amendment is applicable to the States by reason of the Fourteenth.

A three-judge court was convened which dismissed the complaint after oral argument but without conducting an evidentiary hearing. Judge Fairchild, concurring, believed that 28 U.S.C. § 2283 prohibited the issuance of an injunction; Judge Doyle, dissenting, was of the contrary opinion. Judge Gordon found it unnecessary to reach that question, deciding rather to abstain in favor of the state criminal proceedings.

In addition to attacking the statute as void on its face for overbreadth, appellants alleged that their arrests were made and prosecutions instituted for purposes of harassment and in a discriminatory manner on account of their political beliefs. Appellees in their answer denied these allegations and attached copies of the complaints filed in the state criminal proceedings which alleged that appellants were interfering with classes or interviews in the buildings by speaking in loud voices or by refusing to leave when requested to do so.

We stated in Dombrowski v. Pfister, 380 U.S. 479, 489-490, 85 S.Ct. 1116, 1122-1123, 14 L.Ed.2d 22, that the abstention doctrine is inappropriate for cases in which state statutes are justifiably challenged either on their face or 'as applied for the purpose of discouraging protected activities.' In my view, appellants have adequately alleged in their complaint that their arrests and prosecutions were effected in bad faith and in a discriminatory manner in order to punish and discourage exercise of constitutionally protected rights. Since an issue of fact is presented, I would remand to the court below with directions to conduct a plenary hearing on the point.

Appellants have alleged in their complaint facts surrounding their arrests which suggest harassment solely on account of the nature of appellants' protest. Moreover, the criminal complaints filed against several of the appellants in the state court, and appended to the appellees' answer in this case, raise a strong suspicion that the arrests and prosecutions were carried out in bad faith.

Where there are allegations of bad faith, harassment, and discrimination, critical evidence on the matter can only be drawn out upon cross-examination of the officials involved. The question is not the guilt or innocence of the persons charged, but whether their arrests were made and prosecutions commenced in bad faith, for purposes of harassment and in a discriminatory manner. See Cameron v. Johnson, 390 U.S. 611, 619-620, 621, 88 S.Ct. 1335, 1340-1341, 20 L.Ed.2d 182. If the charge that the statute was used in bad faith were shown, a federal claim would be established. And it would not matter what the state courts later did, for the interim 'continuing harassment' of appellants for exercising their First Amendment rights would entitle them to relief. See Dombrowski v. Pfister, 380 U.S., AT 490, 85 S.Ct., at 1123.

For these reasons I would note probable jurisdiction, vacate the judgment below, and remand the case for a preliminary hearing on the issue of the use of a disorderly conduct statute to punish people for expression of their unpopular views.