(dissenting):
I respectfully dissent. Under threat of arrest, the plaintiff has been prevented from exhibiting its motion picture film in the State of Alabama since No*258vember 21, 1969. For this claimed violation of its First Amendment rights, the plaintiff has been seeking relief from this Court since November 26, 1969. On December 23, 1969, Judge McFadden denied the plaintiff’s prayer for a temporary order restraining the defendants from seizing any of the prints of the motion picture film or threatening to do so, or arresting the manager or other employee of the theater, or otherwise threatening and/or interfering with the exhibition of the plaintiff’s motion picture film. With ruling reserved on the defendants’ motion to dismiss, or, in the alternative, for abatement, stay or abstention, the case was heard and submitted on its merits on February 2, 1970. Now, after holding the case under submission for more than six months, the majority of this Court refuses to give the plaintiff any definite answer to its prayer for relief, applies one or more of the doctrines of abstention, grants the defendants’ motion to stay, and retains jurisdiction of the cause pending the outcome of the State litigation.
ABSTENTION
For each of my distinguished colleagues, both as an individual and as a judge, I entertain the highest respect, but after the most careful consideration, I would be less than candid if I did not say that my thinking is so far different from theirs that to join my colleagues in abstaining would be for me nothing short of abdication of my judicial duties. Again I repeat that my colleagues are my friends and I respect them as good conscientious judges. Abstaining seems to them the exercise of wise judicial discretion. It seems to me unthinkable poison.
My colleagues recognized the difference in our judicial philosophies when they wrote on page 254 of their opinion: “We hold the view that in the scheme of the Constitution, State courts are the primary guarantors of Constitutional rights, and in many cases they may be the ultimate ones. This view has by no means been shared by all those connected with the federal courts.” As far back as 1956 in refusing to abstain in the Montgomery bus boycott case, I had written:
“The short answer is that doctrine has no application where the plaintiffs complain that they are being deprived of constitutional civil rights, for the protection of which the Federal courts have a responsibility as heavy as that which rests on the State courts.11
Browder v. Gayle, M.D.Ala., 1956, 142 F.Supp. 707, 713.
The decision in that case was summarily affirmed by the Supreme Court. Gayle v. Browder, 1956, 352 U.S. 903, 77 S.Ct. 145, 1 L.Ed.2d 114. Again in England v. Louisiana State Board of Medical Examiners, 1964, 375 U.S. 411, 415, 416, 84 S.Ct. 461, 464, 11 L.Ed.2d 440, Mr. Justice Brennan speaking for the Court said:
“There are fundamental objections to any conclusion that a litigant who has properly invoked the jurisdiction of a Federal District Court to consider federal constitutional claims can be compelled, without his consent and through no fault of his own, to accept instead a state court’s determination of those claims.5 Such a result would
be at war with the unqualified terms in which Congress, pursuant to constitutional authorization, has conferred specific categories of jurisdiction upon the federal courts, and with the principle that ‘When a Federal court is properly appealed to in a case over *259which it has by law jurisdiction, it is its duty to take such jurisdiction * *. The right of a party plaintiff to choose a Federal court where there is a choice cannot be properly denied.’ Willcox v. [Consolidated Gas Co., 212 U.S.] 19, 40 [29 S.Ct. 192, 195, 53 L.Ed. 382]. Nor does anything in the abstention doctrine require or support such a result. Abstention is a judge-fashioned vehicle for according appropriate deference to the ‘respective competence of the state and federal court systems.’ Louisiana P. & L. Co. v. Thibodaux, 360 U.S. 25, 29 [79 S.Ct. 1070, 1073, L.Ed.2d 1058]. Its recognition of the role of state courts as the final expositors of state law implies no disregard for the primacy of the federal judiciary in deciding questions of federal law6. * * *
In Zwickler v. Koota, 1967, 389 U.S. 241, 88 S.Ct. 391, 19 L.Ed.2d 444, the Supreme Court not only approved its holding in England that it is the federal judiciary which has the “primacy * * in deciding questions of federal law” (389 U.S. at 252, 88 S.Ct. at 397), but it elaborated on that thesis in unmistakable terms:
“During most of the Nation’s first century, Congress relied on the state courts to vindicate essential rights arising under the Constitution and federal laws. The only exception was the 25th section of the Judiciary Act of 1789, 1 Stat. 85, providing for review in this Court when a claim of federal right was denied by a state court. But that policy was completely altered after the Civil War when nationalism dominated political thought and brought with it congressional investiture of the federal judiciary with enormously increased powers. The Act of March 3, 1875, was the principal ‘ * * * measure of the broadening federal domain in the area of individual rights,’ McNeese v. Board of Education, 373 U.S. 668, 673 [83 S.Ct. 1433, 1436, 10 L.Ed.2d 622], By that statute ‘ * * * Congress gave the federal courts the vast range of power which had lain dormant in the Constitution since 1789. These courts ceased to be restricted tribunals of fair dealing between citizens of different states and became the primary and powerful reliances for vindicating every right given by the Constitution, the laws, and treaties of the United States.’ (Emphasis added.) Frankfurter & Landis, The Business of the Supreme Court: A Study in the Federal Judicial System 65.” [Footnotes omitted. Emphasis that of the Court.]
389 U.S. at 245-247, 88 S.Ct. at 394-395. With deference to my colleagues, it is beyond my comprehension how they can justify the contrary doctrine which they advance.
Abstention simply has no place in the consideration of this case. The defendants make some contention that the instant action is an in rem proceeding. Neither of my colleagues expresses himself as in agreement with that contention, and it is difficult for me to believe that the defendants are serious in advancing it. We deal only with claims for declaratory and injunctive relief which are in personam in nature. The proceeding in the state court seeks injunctive relief only and is also in personam in nature.
I agree fully that we should not issue an injunction against the state court proceeding. Indeed we are denied any power to do so by 28 U.S.C. § 2283,1 as recently construed in Atlantic Coast Line R.R. Co. v. Brotherhood of Locomotive Engineers, et al., 398 U.S. 281, 90 S.Ct. 1739, 1747, 26 L.Ed.2d 234 (Decided June *2608, 1970).2 Justice Black, speaking for the Court, held an injunction not necessary in aid of the jurisdiction of the federal court for a reason which is applicable also to the prayer for declaratory judgment in the present case:
“ * * * although it [the railroad] could have tendered its federal claims to the state court, it was also free to restrict the state complaint to state grounds alone. Cf. England v. Louisiana State Board of Medical Examiners, 375 U.S. 411 [84 S.Ct. 461, 11 L.Ed.2d 440] (1964). In short the state and federal courts had concurrent jurisdiction in this case, and neither court was free to prevent either party from simultaneously pursuing claims in both courts. Kline v. Burke Constr. Co., 260 U.S. 226 [43 S.Ct. 79, 67 L.Ed. 226] (1922); cf. Donovan v. Dallas, 377 U.S. 408 [84 S.Ct. 1579, 12 L.Ed.2d 409] (1964). Therefore the state court’s assumption of jurisdiction over the state law claims and the federal preclusion issue did not hinder the federal court’s jurisdiction so as to make an injunction necessary to aid that jurisdiction.” (398 U.S. 295, 296, 90 S.Ct. 1747.)
However, assuming arguendo that I am mistaken and that abstention does have a place in the consideration of this case, I submit that we should not abstain from declaring the rights of the parties, for at least two reasons: 1. A state statute is being attacked as repugnant to the First Amendment and the delay from requiring recourse to the state courts might chill the very constitutional right which the plaintiff seeks to protect. Zwickler v. Koota, 1967, 389 U.S. 241, 88 S.Ct. 391, 19 L.Ed.2d 444. 2. For reasons next to be stated, I submit that it is clear that the state statute is unconstitutional no matter how it may be construed by the state courts. Harman v. Forssenius, 1965, 380 U.S. 528, 534-535, 85 S.Ct. 1177, 14 L.Ed.2d 50; McNeese v. Board of Education, 1963, 373 U.S. 668, 673-674, 83 S.Ct. 1433, 10 L.Ed.2d 622.
CONSTITUTIONALITY
In my opinion Act No. 698, Acts of Alabama 1969,3 is unconstitutional both on its face and as here applied. It seems so clear to me that the Act must fall because of the constitutional insufficiency of Section 4 that I see no need for me to consider the constitutionality of Sections 1, 2 and 3.4
Under Section 4, any one of a broad range of law enforcement officials 5 may give a prospective accused written notice that there is reasonable cause to believe that the material upon which the prosecution may be based is obscene or represents hardcore pornography. Only if the accused sells or exhibits, etc., such material after receiving such a warning notice can criminal prosecution be commenced against him for violating Sections 2 and 3 of the Act.
Under Section 4 of the Act, a prospective accused having received a notice has three alternatives: (1) He can cease exhibiting, publishing, selling, etc., the material in question, and thus forego the exercise of his first amendment rights; (2) he can institute a declaratory judgment action or other test proceeding to determine the validity of the notice, while foregoing exercise of his first amendment rights; or (3) he can continue to exhibit, publish, etc., the material and become subject to criminal prosecution. It can reasonably be foreseen that most persons having received such *261a notice will act as did Mrs. Cooper in this case, that is, cease and desist publication at least until a judicial determination of the question of obscenity.6 Thus, the Act in effect establishes a form of coerced self-censorship.7
Section 4 and its application clearly establish a prior restraint on expression of first amendment rights. As the Supreme Court stated in Bantam Books, supra, 372 U.S. at 70, 83 S.Ct. at 639: “Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity.- * * * We have tolerated such a system only where it operated under judicial superintendence and assured an almost immediate judicial determination of the validity of the restraint.”8
Here, the warning scheme established in Section 4 fails to meet the “heavy presumption against its constitutional validity.” The system lacks judicial supervision and does not assure an almost immediate judicial determination on the question of obscenity. Law enforcement officials under Section 4(a) can effectively bar material upon the self-determination that it is obscene or represents hardcore pornography. As Judge Johnson concluded in Poulos v. Rucker, M.D. Ala.1968, 288 F.Supp. 305, 310: “It is also clear that even in the absence of seizure, threats of criminal prosecution by police officers or other administrative officials can constitute an all too effective prior restraint.” See Dombrowski v. Pfister, 1965, 380 U.S. 479, 486, 487, 85 S.Ct. 1116, 14 L.Ed.2d 22; NAACP v. Button, 1963, 371 U.S. 415, 433, 83 S.Ct. 328, 9 L.Ed.2d 405; Drive In Theatres, Inc. v. Huskey, W.D.N.C.1969, 305 F.Supp. 1232.
For the warning scheme in Section 4 to be a valid prior restraint,9 it must operate “ * * * under judicial superintendence and [assure] an almost immediate judicial determination of the validity of the restraint.” Bantam *262Books, supra, 372 U.S. at 70, 83 S.Ct. at 639.10
Section 4 involves more than informal, private consultation held permissible in Bantam Books, supra.11 It is, in effect, a statutory warning that unless the distributor ceases exhibiting, publishing, selling, etc., the material in question, criminal prosecution will be initiated. True, Section 4 does not call for the express threat of prosecution. However, in my view, the absence or presence of an express threat of prosecution does not preclude Section 4 from operating as a prior restraint on first amendment rights.12 After the written notice, the distributor must cease dissemination of his material or face criminal prosecution. The alternative of criminal prosecution is an effective restraint upon the exercise of one’s first amendment rights. See note 6, supra; Poulos v. Rucker, M.D.Ala.1968, 288 F.Supp. 305, 310.
I consider the rationale of Freedman v. Maryland, 1965, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649, and Lee Art Theatre, Inc. v. Virginia, 1968, 392 U.S. 636, 88 S.Ct. 2103, 20 L.Ed.2d 1313, pertinent to the decision of this case. The Supreme Court found that the effort to censor material prior to distribution, Freedman, and the seizure of allegedly obscene material, Lee Art Theatre, were unconstitutional prior restraints absent certain judicial safeguards. The classic form of prior censorship in Freedman is little if any more effective or objectionable than the coerced self-censorship required by Section 4. See note 7, supra. The prior restraint invalidated in Lee Art Theatre was the seizure of an allegedly obscene film pursuant to a warrant issued solely on the conclusory assertion of a police officer that the film was obscene. Under Section 4, law enforcement officials can issue warnings, based upon their sole determination,13 that there is reasonable cause to believe the material is obscene. This latter procedure, like that in Lee Art Theatre, is an effective restraint. And it is impermissible for the same reason, namely, that it is not “ ‘designed to focus searchingly on the question of obscenity,’ * * and therefore [falls] short of constitutional requirements demanding necessary sensitivity to freedom of expression.” 392 U.S. at 637, 88 S.Ct. at 2104.
Being of the firm opinion that the Act is unconstitutional on its face and as here applied, I do not reach the question of bad faith enforcement vel non. Nor do I reach the question of whether or not the film is obscene. See Teitel Film Corp. v. Cusack, 1968, 390 U.S. 139, n. 1, 88 S.Ct. 754, 19 L.Ed.2d 966; Entertainment Ventures, Inc. v. Brewer, M.D. Ala.1969, 306 F.Supp. 802, 805.
For the reasons stated, I respectfully dissent.
"11. Lane v. Wilson, 307 U.S. 268, 274, 59 S.Ct. 872, 83 L.Ed. 1281; Mitchell v. Wright, 5 Cir., 154 F.2d 924, 926; Romero v. Weakley, 9 Cir., 226 F.2d 399, 402; Wilson v. Beebe, D.C.Del., 99 F.Supp. 418, 420. Cf. Doud v. Hodge, 350 U.S. 485, 487, 76 S.Ct. 491, [100 L.Ed. 577]."
"5. At least this is true in a case, like the instant one, not involving the possibility of unwarranted disruption of a state administrative process. Compare Burford v. Sun Oil Co., 319 U.S. 315 [63 S.Ct. 1098, 87 L.Ed. 1424]; Alabama Public Service Comm’n v. Southern R. Co., 341 U.S. 341 [71 S.Ct. 762, 95 L.Ed. 1002].
"6. See Kurland, Toward a Co-operative Judicial Federalism: The Federal Court Abstention Doctrine, 24 F.R.D. 481, 487.”
. “A court of the United States may not grant an injunction to stay proceedings in a State court except as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments.”
. Followed in Pacific Indemnity Co. v. Acel Delivery Service, 5 Cir. 1970, 432 F.2d 952.
. Attached as Appendix A to majority opinion.
. The Alabama Legislature may, however, be well advised to remove some of the occasions of doubtful constitutionality in those sections revealed in the plaintiff’s briefs.
. See Sec. 4(b) of Act, Appendix A to majority opinion.
. It is true that a person could ignore a warning given under Section 4(a) and continue to exhibit a motion picture film. However, the alternative of a criminal prosecution is an effective restraint. In Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 68, 83 S.Ct. 631, 638, 9 L.Ed.2d 584 (1963), the Supreme Court in voiding a similar warning scheme remarked: “People do not lightly disregard public officers’ thinly veiled threats to institute criminal proceedings against them if they do not come around * *
. “Self-censorship” is used to distinguish Section 4 from the classic forms of censorship, discussed in Freedman v. Maryland, 1965, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649, and Times Film Corp. v. City of Chicago, 1961, 365 U.S. 43, 81 S.Ct. 391, 5 L.Ed.2d 403, where motion picture films must be initially approved by a board of censors. The coercion is such as to place upon the state responsibility for the resulting “self-censorship.”
. The Court held in Times Film Corp. v. City of Chicago, supra, that a prior restraint was not unconstitutional per se.
. Since arrests have not been made, this Court need not determine whether or not, absent a warning system, an adversary hearing is necessary before arrest, as has recently been held or intimated by several district courts. See Delta Book Distributors, Inc. v. Cronvich, E.D.La.1969, 304 F.Supp. 662, 667; Drive In Theatres, Inc. v. Huskey, W.D.N.C.1969, 305 F.Supp. 1232; Raphael v. Hogan, S.D.N.Y.1969, 305 F.Supp. 749, 757. In any event, as pointed out in Bantam Books, such a warning scheme creates liazzards greater than those presented by simple arrest and prosecution:
“In thus obviating the need to employ criminal sanctions, the State has at the same time eliminated the safeguards of the criminal process. Criminal sanctions may be applied only after a determination of obscenity has been made in a criminal trial hedged about with the procedural safeguards of the criminal process. The Commission’s practice is in striking contrast, in that it provides no safeguards whatever against the suppression of nonobscene, and therefore constitutionally protected, matter. It is a form of regulation that creates hazards to protected freedoms markedly greater than those that attend reliance upon the criminal law.” 372 U.S. 69, 70, 83 S.Ct. 639.
. Under Freedman v. Maryland, 1965, 380 U.S. 51, 85 S.Ct. 734, 13 L.Ed.2d 649, the burden of initiating the adversary hearing and the burden of establishing the validity of the warning is on the State.
. “In holding that the activities disclosed on this record are constitutionally proscribed, we do not mean to suggest that private consultation between law enforcement officers and distributors pri- or to the institution of a judicial proceeding can never be constitutionally permissible. We do not hold that law enforcement officers must renounce all informal contacts with persons suspected of violating valid laws prohibiting obscenity. Where such consultation is genuinely undertaken with the purpose of aiding the distributor to comply with such laws and avoid prosecution under them, it need not retard the full enjoyment of First Amendment freedoms.” 372 U.S. 58, 71-72, 83 S.Ct. 631, 640.
. Bantam Books, supra, 372 U.S. at 67-70, 83 S.Ct. 631. As the Court noted in Bantam Bootes: “It is characteristic of the freedoms of expression in general that they are vulnerable to gravely damaging yet barely visible encroachments.”
Id. at 66, 83 S.Ct. at 637.
. Some of the law enforcement officials issuing the warning did not view the entire film but relied on information from other officers. This application of the Act increases the potential for abuse under a statute regulating speech and expression.