401 U.S. 37 (1971), argued 1 Apr. 1969, reargued 29 Apr. and 6 Nov. 1970, decided 23 Feb. 1971 by vote of 8 to 1; black for the Court, Stewart, Harlan, Brennan, White, and Marshall concurring, Douglas in dissent. Harris was indicted in a California court for violation of the state's criminal syndicalism act. The U.S. Supreme Court had held the act valid in Whitney v. California (1927), but an identical statute had been found unconstitutional in Brandenburg v. Ohio (1969), and Whitney was overruled. Harris therefore sought an injunction in the federal courts to prohibit his prosecution under an almost certainly unconstitutional statute. He claimed that both the prosecution and the act violated his rights under the First and Fourteenth Amendments and that Dombrowski v. Pfister (1965) permitted federal intervention.
Without discussing the implications of Brandenburg, and despite the alleged threat to freedom of expression, the Supreme Court reversed the federal district court and lifted the federal injunction.
For Justice Hugo Black, the issue turned on the nature of federalism. Long‐established policy prohibited federal courts from intervening in state court proceedings except (1) when authorized by Congress, (2) when necessary to “aid in its jurisdiction,” (3) when necessary “to protect or effectuate its judgments,” and (4) when those being prosecuted by states will “suffer irreparable damages” (p. 43).
The policy was designed to protect the principle of comity. The legitimate concerns of both state and federal governments must be carefully balanced. Consequently, federal courts should interfere with pending state prosecutions only under extraordinary circumstances, when the danger of irreparable injury is both substantial and imminent. Even then, intervention is warranted only if the threat to protected federal rights could not be resolved at the state criminal trial. According to Black, none of these reasons for intervention was present in Harris.
Unlike Dombrowski, Harris was not threatened with continued bad‐faith prosecutions or harassment that created a “chilling effect” on freedom of expression. Neither was any irreparable injury to Harris, beyond the ordinary consequences of a criminal trial, foreseen. And, according to Black, the validity of the threat to Harris's federally protected rights could well be determined in his state trial.
Black admitted that the First Amendment issues involved in Dombrowski suggested that even absent bad faith and harassment, a “chilling effect” might result from the enforcement of statutes that are on their face unconstitutional. Such a suggestion, however, was not directly relevant to the earlier decision and a possible “chilling effect” by itself was not enough to justify federal injunctive intervention here. Black also maintained that injunctive intervention in pending prosecutions involving constitutional issues places the federal judiciary in an inappropriate role. Federal courts ought not to pass judgment on state statutes without benefit of state court interpretation. Such judgment would constitute a form of advisory opinion and would fail to meet requirements of true cases and controversies under Article III.
In separate concurring opinions, Justice Potter Stewart carefully outlined the limited reach of the decision, and Justice William Brennan emphasized those factors that distinguished the case from Dombrowski.
Justice William O. Douglas, however, praised the wisdom of Dombrowski in his dissent. During times of repression, Douglas wrote, the federal judiciary has a special obligation to protect constitutional rights, and the circumstances in Harris called for such protection. A threatened prosecution under an unconstitutionally overbroad and vague state criminal statute created a “chilling effect” on the exercise of federal rights and thus required the exercise of federal equity power. Otherwise, when “criminal prosecution can be leveled against [persons] because they express unpopular views, the society of the dialogue is in danger” (p. 65).
See also Abstention Doctrine; Judicial Power and Jurisdiction; Lower Federal Courts.
— Charles H. Sheldon
