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Written by John R. Vile, last updated on September 19, 2023

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Zwickler v. Koota (1967) overturned a district court ruling that had turned down an appeal against a law criminalizing distribution of anonymous handbills. (Photo of a volunteer handing out political literature at a health care reform rally, taken by ACT NOW via Wikimedia Commons, CC-BY-S.A. 3.0)

The U.S. Supreme Court decision in Zwickler v. Koota 389 U.S. 241 (1967), overturned a federal district court ruling that had turned down an appeal under the Declaratory Judgment Act that sought injunctive relief against a New York law criminalizing distribution of anonymous handbills related to an ongoing political campaign. Such an injunction would have forbidden New York to prosecute.


District court refused relief to Zwickler who argued law violated First Amendment


The appellant had argued that the law was facially invalid under First Amendment guarantees of freedom of expression for its “overbreadth” in that “its sweep embraces anonymous handbills both within and outside the protection of the First Amendment.” Zwickler had sought declaratory and injunctive relief after New York courts had reversed his conviction under the law. In refusing to grant such relief, the district court had cited the principle of abstention, telling Zwickler that he could either defend himself in state courts or seek a declaratory judgment from them.


Supreme Court said district court should have reviewed Zwickler’s claim


Writing for the Court, Justice William J. Brennan Jr. overturned this ruling, noting that Congress had adopted laws granting federal courts increased power to review state statutes after the Civil War. He interpreted these laws as imposing “the duty upon all levels of the federal judiciary to give due respect to a suitor’s choice of a federal forum for the hearing and decision of his federal constitutional claims.”


The doctrine of abstention, which Justice Brennan traced to Railroad Commission v. Pullman Co. (1941), allowed federal courts to dodge this task only in “special circumstances,” such as “the susceptibility of a state statute of a construction by the state courts that would avoid or modify the constitutional question.” He did not believe that these circumstances could exempt a law from an overbreadth challenge, and therefore he concluded that “if a state statute is not fairly subject to an interpretation which will avoid or modify the federal constitutional question, it is the duty of a federal court to decide the federal questions when presented to it.”


Justice Brennan wrote that this was especially important in cases involving attacks on statutes alleged to violate the First Amendment on their face, and he argued that this principle was reinforced by the decision in Dombrowski v. Pfister (1965). He went on to interpret that decision (since modified by Younger v. Harris [1971]) to mean that federal courts should issue declaratory relief “irrespective of its conclusion as to the propriety of the issuance of the injunction.”


Justice John Marshall Harlan wrote in his concurring opinion that “the District Court should not have declined to adjudicate appellant’s constitutional claims,” but noted that such a judgment should not rest on whether the complaint was based on “overbreadth” or “vagueness.”


District court eventually gave Zwickler declarative relief


When this case was returned to the lower court, Zwickler indicated that he continued to want the option of passing out anonymous literature criticizing his  congressman if he ran for reelection, while acknowledging that the congressman had since accepted a place on the Supreme Court of New York.  The three-judge district court believed that the case remained viable and that Zwickler was therefore entitled to declaratory relief both because the controversy “was genuine, substantial and immediate,” when it was filed and because the continuing threat to enforce the law could deter Zwickler from future distributions.


Supreme Court later dismissed the case


Delivering the opinion in the resulting case of Golden v. Zwickler, 394 U.S. 103 (1969), Brennan pointed out that Article III of the Constitution was designed to prevent courts from issuing advisory opinions, and that adjudications required “concrete legal issues, presented in actual cases, not abstractions.”  Because the literature at issue was directed at a congressman who seemed unlikely to run again, the mere prospect that he could do so lacked the “immediacy and reality” that was required for court decision and could not be presented “in the context of a specific live grievance.”  Brennan said that such immediacy was required whether the matter involved the First Amendment or another issue and whether it involved review of state or federal legislation.


Ruling that the case should therefore be dismissed, Brennan offered no judgment on whether the state law banning distribution of anonymous pamphlets was constitutional. The Court is generally more favorable toward anonymous publications than it is to anonymous campaign contributions, at least over certain amounts. 


John Vile is a professor of political science and dean of the Honors College at Middle Tennessee State University. He is co-editor of the Encyclopedia of the First Amendment. This article was originally published in 2009.


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