(concurring in part and dissenting in part):
The plaintiffs have alleged that the official and unofficial power structure of the white community has been successfully mobilized to deny them their First Amendment rights to protest their relegation to second class citizenship. They allege that the police, by means of violence and brutality exercised during wholesale arrests upon trumped up charges ; the judiciary, by means of broad and vague injunctions; and the City Council, by means of its unconstitutional ordinances against picketing and parading, have succeeded in crushing the minority’s *600carefully organized effort to express its discontent with the status quo.
If this can be proven, even if the ordinances are facially constitutional, we think the very exceptional circumstances recognized by the Court in Douglas as justifying injunctive relief exist here. If that is true, then 28 U.S.C.A. § 2283 does not relieve the federal courts of their obligation to protect the plaintiffs’ constitutional rights.
Therefore, we cannot agree that the district court had no discretion to entertain the plenary suits on the merits and to issue any restraining orders or injunctions necessary to protect the plaintiffs’ rights therein, including an injunction against both pending and further criminal prosecutions under the ordinances and injunctions in question.1
The defendants assert that the plaintiffs’ conduct endangers the rights of other citizens, especially the property rights of the merchants and businessmen located at the scene of the demonstrations. Doubtless fear exists on both sides, but this does not justify a denial to the plaintiffs of their day in court. Free speech is protected even though often provocative. Cf. Edwards v. South Carolina, 372 U.S. 229, 237, 83 S.Ct. 680, 9 L.Ed.2d 697 (1962). This is not to say that we would condone violence or disobedience to the law, but if we accept the plaintiffs’ allegations, as we must for the purpose of this appeal, the violence here was that of the defendants incited and engaged in to prevent the plaintiffs from lawfully and peacefully exercising their First Amendment rights.
The majority concedes that exceptional circumstances existed which justified the issuance of our restraining order last August. Baines v. City of Danville, 321 F.2d 643 (4 Cir. 1963). That “the situation has undergone substantial change for the better” and that “things have-simmered down” are conclusions which, we are not entitled to draw until the district court has found the facts. In so-concluding, the majority opinion has unwittingly prejudged the facts of the case. Furthermore, these conclusions are not pertinent. They do not prove that the exceptional circumstances which justified our restraining order have passed. It could mean that the plaintiffs are no longer being interfered with in expressing their rights. On the other hand, it could mean that the plaintiffs have been so cowed that they no longer dare to express themselves, and this was their contention at the argument of the appeal.. If this is so, then the exceptional circumstances which were absent in Douglas are-abundantly present here.
We are here concerned not only with, the immediate effect of the prosecutions, on the 105 defendants; we are more concerned with the ultimate effect which the prosecutions will have on the plaintiffs” attempts to express their grievances by organized effort.2 The effect apprehended is only minimally diminished by the: *601«tate court’s withdrawal of its astounding order scattering the prosecutions throughout the entire state.
The plaintiffs have alleged a cause of ■action within the provisions of 42 U.S. C.A. § 1983. If the facts alleged are true, only the most cynical of observers would ■contend that First Amendment rights of the entire Negro community would not be irreparably injured if these prosecutions and these ordinances are allowed to achieve their alleged objectives. Comity does not require the federal courts to sit idly by when only an equitable remedy can effectively protect these rights. Jordan v. Hutcheson, 323 F.2d 597, 601 (4 Cir. 1963). It is the duty of the federal courts to protect these rights, and the statute, 42 U.S.C.A. § 1983, expressly authorizes equitable relief. The precious First Amendment rights of our citizens are beyond pecuniary evaluation. Hague v. Committee for Industrial Organization, 307 U.S. 496, 59 S.Ct. 954, 83 L.Ed. 1423 (1939). Since it is obvious that in the context of this ease no other civil remedy could possibly accomplish the Congressional purpose to afford the Negro citizen equal rights, there is every reason to hold that the equitable remedy expressly authorized in 42 U.S.C.A. § 1983 is within the ■exception set forth in 28 U.S.C.A. § 2283. Cooper v. Hutchinson, 184 F.2d 119, 124 (3 Cir. 1950).
The plaintiffs allege that the ordinances and the state court’s injunctive ■order are unconstitutional on their face. The majority does not reach this question so far as the plaintiffs are concerned, but it enjoins future prosecution under the ordinances and injunction. This is a strange and unwarranted dichotomy. Since the hearing of the appeal in this court, a similar situation was presented to a three judge court in the Fifth Circuit. There the court declared unconstitutional on their face an “unlawful assembly statute” and an “insurrection statute” and enjoined prosecution of the plaintiffs in proceedings already begun under those statutes. Aelony v. Pace, C.A. No. 530, Harris v. Pace, No. 531 (M.D.Ga., Americus Division, 1963). So here, the question of the constitutionality of the ordinances and the injunction, which the court declines to face, should be faced. In Bailey v. Patterson, 323 F.2d 201 (5 Cir. 1963), the court, citing Evers v. Dwyer, 358 U.S. 202, 79 S.Ct. 178, 3 L.Ed.2d 222 (1958), pointed out that the law is now crystal clear that one does not have to subject himself to arrest and prosecution to test the constitutionality of state laws.
We would direct the district court to hold a preliminary hearing, and if it appears that plaintiffs’ allegations with respect to the pending prosecutions are well founded, to issue a temporary injunction until the case is heard. If after a full hearing the facts are found to be as alleged and the district court should in its discretion conclude that a clear and imminent danger of irretrievable injury to the plaintiffs’ First Amendment rights exists, then both pending and future criminal prosecutions should be enjoined. By retaining jurisdiction of the case, the court could modify its order in any way necessary to protect the *602rights of all the citizens of Danville against excesses by either side.
. No objection is raised to the refusal to entertain an appeal from the district court’s order remanding the removed eases to the state court. (But see Oivil Rights Act of 1964, Pub.L. No. 88-352 (July 2, 1964), 78 Stat. 241 § 901, amending 28 U.S.C.A. § 1447(d)). Nor is there any disagreement with the conclusion that no proper service was obtained on the Virginia Employment Compensation Commission.
. This was the basic issue in United States v. Wood, 295 F.2d 772 (5 Cir. 1961), where the alleged intimidation was directed to the exercise of the voting rights of the Negro community; i.e., public civil rights as distinguished from the private rights of the individual, Hardy, who had no right to vote in Mississippi in any event. The majority would distinguish Wood on the ground that the United States was a formal party. Here the United States requested and obtained permission to appear in the case as amicus curiae. We would not draw such a fine distinction. Here, too, we are-concerned with public civil rights. An. irreparable injury to such important rights which was clear and imminent would constitute the judicially engrafted, exception to the rule of comity which, forbade equitable interference by the federal courts with state criminal prosecutions. Douglas v. City of Jeannette, 319 U.S. 157, 163, 63 S.Ct. 877, 87 L.Ed. *6011324 (1942). Douglas is distinguishable on the facts because no such clear and imminent irreparable injury was found there as is alleged in this case. Furthermore there is justification for the belief that the harsh doctrine of Douglas requiring defendants to run the gamut of ■criminal prosecution to secure their constitutional rights in the factual context here alleged to exist is undergoing modification.
“This is not such a case as requires the withholding of federal court action for reason of comity, since for the proteetion of civil rights of the Mnd asserted Congress has created a separate and distinct federal cause of action. * * * To the extent that this is inconsistent with Douglas v. City of Jeannette, Pa., 319 U.S. 157, 63 S.Ct. 877, 87 L.Ed. 1324, we must consider the earlier case modified [by Browder v. Gayle, 142 F.Supp. 707 (M.D.Ala.), affirmed, 352 U.S. 903, 77 S.Ct. 145, 1 L.Ed.2d 114 (1956)].” Morrison v. Davis, 252 F.2d 102, 103 (5 Cir.), cert. denied, 356 U.S. 968, 78 S.Ct. 1008, 2 L.Ed.2d 1075 (1958).