(concurring in part and dissenting in part):
In my opinion the majority is correct in remanding this case to the district court for further consideration, although *951little of the case is left to consider. To that extent I concur in the remand since this is not an appropriate case for summary judgment. The development of evidence by affidavits alone is not sufficient in a ease of this magnitude. When there are allegations of bad faith, irreparable injury, illegal procedure, and harassment, as well as claims to extraordinary and emergency relief, a full disclosure of the facts is essential.
It is with some regret that I find it necessary to dissent to the other conclusions reached in the majority opinion (hereafter sometimes referred to as the opinion). Not only do I have the highest regard for the author and the sincerity of his views, but also I am impressed that the position taken is argued with force and erudition. Nevertheless, I disagree with the conclusions reached, and I think it is my unavoidable duty not to surrender my own judgment in view of the national importance of the issues tendered for decision. In my judgment the opinion decides too much too quickly.
What I shall say is not intended to disparage the importance of First Amendment rights guaranteed by the Constitution. Yet in according full deference to the vital importance of the exercise of such rights, courts should keep in mind that on some occasions there are claims that activities are First Amendment expressions, when the actual facts clearly show that the actors are parading under a shield of hypocracy. In some circumstances the characterizations “peaceful protest”, “peaceable assembly” and “freedom of expression” are used as an impenetrable carapace to shield violent and riotous conduct. Serious consequences which threaten the general welfare and domestic tranquility inevitably follow.
I
In my view this ease should begin and end with the application of the clear and unequivocal pronouncement by the Supreme Court in Atlantic Coast Line R. Co. v. Brotherhood of Locomotive Engineers, 398 U.S. 281, 90 S.Ct. 1739, 26 L.Ed.2d 234 (1970). It is the latest controlling and most positive decision on the subject of interference by federal courts with state court proceedings. This important decision deserves more than the footnote treatment accorded it in the majority opinion. Atlantic Coast Line also involved the right to picket. Indeed, it involved a federally protected right to picket under the Railway Labor Act, 45 U.S.C. 151 et seq., which Act declares that the right to picket can not be interfered with by state court injunctions. The right of laborers to picket in Atlantic Coast Line is at least equal to the alleged rights of the plaintiffs in this case to parade, assemble and picket. In addition, the pickets in Atlantic Coast Line not only had the constitutional right to picket as a means of expression, Thornhill v. Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093 (1940); that right was also fully recognized as a national policy by the Railway Labor Act and by a recent Supreme Court decision. Brotherhood of Railway Trainmen v. Jacksonville Terminal Co., 394 U.S. 369, 89 S.Ct. 1109, 22 L.Ed.2d 344 (1969).
Atlantic Coast Line should settle current doubts about the meaning of 28 U.S. C. 2283. Rather than undertaking to paraphrase the Court’s language, I quote three excerpts from the opinion which leave no question about what the Court held:
“The respondent here has intimated that the Act only establishes a ‘principle of comity,’ not a binding rule on the power of the federal courts. The argument implies that in certain circumstances a federal court may enjoin state court proceedings even if that action cannot be justified by any of the three exceptions. We cannot accept any such contention. In 1954 when this Court interpreted this statute, it stated: ‘This is not a statute conveying a broad general policy for appropriate ad hoc application. Legislative policy is here expressed in a clear-cut prohibition qualified only by specifically defined exceptions.’ Amalgamated Clothing Workers v. Richman Brothers, 348 U.S. 511, 515-516, 75 S.Ct. *952452, 455, 99 L.Ed. 600, 607-608 (1955). Since that time Congress has not seen fit to amend the statute and we therefore adhere to that position and hold that any injunction against state court proceedings otherwise proper under general equitable principles must be based on one of the specific statutory exceptions to § 2283 if it is to be upheld. Moreover since the statutory prohibition against such injunctions in part rests on the fundamental constitutional independence of the States and their courts, the exceptions should not be enlarged by loose statutory construction. Proceedings in state courts should normally be allowed to continue unimpaired by intervention of the lower federal courts, with relief from error, if any, through the state appellate courts and ultimately this Court.
“First, a federal court does not have inherent power to ignore the limitations of § 2283 and to enjoin state court proceedings. merely because those proceedings interfere with a protected federal right or invade an area preempted by federal law, even when the interference is unmistakably clear. This rule applies regardless of whether the federal court itself has jurisdiction over the controversy, or whether it is ousted from jurisdiction for the same reason that the state court is. Cf. Amalgamated Clothing Workers v. Richman Bros., supra, [348 U.S.] at 519-520, 75 S.Ct. [452] at 457-458, 99 L.Ed. at 609-610. This conclusion is required because Congress itself set forth the only exceptions to the statute, and those exceptions do not include this situation.
Again, lower federal courts possess no power whatever to sit in direct review of state court decisions. If the union was adversely affected by the state court’s decision, it was free to seek vindication of its federal right in the Florida appellate courts and ultimately, if necessary, in this Court. Similarly if, because of the Florida Circuit Court’s action, the union faced the threat of immediate irreparable injury sufficient to justify an injunction under usual equitable principles, it was undoubtedly free to seek such relief from the Florida appellate courts, and might possibly in certain emergency circumstances seek such relief from this Court as well. Cf. Natural Gas Co. v. Public Serv. Comm., 294 U.S. 698, 55 S.Ct. 634, 79 L.Ed. 1235 (1935); United States v. Moscow Fire Ins. Co., 308 U.S. 542, 60 S.Ct. 129, 84 L.Ed. 456 (1939); R. Robertson & F. Kirkham, Jurisdiction of the Supreme Court § 441 (R. Wolfson & P. Kurland ed., 1951). Unlike the Federal District Court, this Court does have potential appellate jurisdiction over federal questions raised in state court proceedings, and that broader jurisdiction allows this Court correspondingly broader authority to issue injunctions ‘necessary in aid of its jurisdiction.’
This case is by no means an easy one. The arguments in support of the union’s contentions are not insubstantial. But whatever doubts we may have are strongly affected by the general prohibition of § 2283. Any doubts as to the propriety of a federal injunction against state court proceedings should be resolved in favor of permitting the state courts to proceed in an orderly fashion to finally determine the controversy. The explicit wording of § 2283 itself implies as much, and the fundamental principle of a dual system of courts leads inevitably to that conclusion.”
I am compelled to disassociate myself with the circular reasoning of the majority. In my opinion it circumvents the clear mandate of § 2283 by the sugar coated assertion that it does not decide whether an injunction is issuable against the pending municipal proceedings, but then proceeds to hold “that we must at least consider plaintiffs’ request for declaratory relief.” Declaratory relief is granted and all but one of the ordinances are held to be null and void. It is obvious to me that the majority possesses serious and well grounded misgivings about the authority of a federal court to intrude upon, stop and nullify state court proceedings, yet it proceeds to effect the *953same interference by decreeing a so called “milder form of relief.”1 Such relief, however, is as offensive to the prohibition of § 2283 as a direct injunction. An injunction interferes directly, declaratory relief indirectly; both violate the clear meaning of the statute. This two-step process nullifies the intent and purpose of § 2283 as interpreted by Atlantic Coast Line. Otherwise stated, the plaintiffs have now obtained a declaratory judgment which places them in a position to return to the federal court to seek a direct injunction under the exception “to protect or effectuate [a federal court’s] judgments.” In my view, such reasoning constitutes an unauthorized evasion of § 2283, reduces it to incoherence and nullifies its plain and unequivocal provisions. I think the logic of Atlantic Coast Line flatly prohibits this subterfuge.
The purpose and intent of the majority to achieve the same restraint as would be achieved by an injunction is clearly demonstrated by the statement in footnote 6 that “We do not resolve this issue [issuance of an injunction] since we find that declaratory relief is available and since we anticipate that the municipality will honor our determination.” The opinion then speaks of the possible necessity of an injunction “to effectuate our judgment.”
The Atlantic Coast Line holding does not represent an abrupt break with the past. Other Supreme Court decisions directly point to and clearly support the principles enunciated in that decision. See e. g., Harrison v. NAACP, 360 U.S. 167, 176, 79 S.Ct. 1025, 3 L.Ed.2d 1152 (1959); Darr v. Burford, 339 U.S. 200, 204, 70 S.Ct. 587, 94 L.Ed. 761 (1950); Douglas v. City of Jeannette, 319 U.S. 157, 163, 63 S.Ct. 877, 87 L.Ed. 1324 (1943); Great Lakes Dredge and Dock Co. v. Huffman, 319 U.S. 293, 63 S.Ct. 1070, 87 L.Ed. 1407 (1943); Hill v. Martin, 296 U.S. 393, 56 S.Ct. 278, 80 L.Ed. 293 (1935); cf. Toucey v. New York Life Ins. Co., 314 U.S. 118, 132, 62 S.Ct. 139, 86 L.Ed. 100 (1941); City of Houston v. Standard Triumph Motor Co., 347 F.2d 194 (5th Cir. 1965). The decisions relied upon by the majority simply do not control the case at hand. Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965); Zwickler v. Koota, 389 U.S. 241, 88 S.Ct. 391, 19 L.Ed.2d 444 (1967); and Cameron v. Johnson, 390 U.S. 611, 88 S.Ct. 1335, 20 L.Ed.2d 182 (1968), deal chiefly with the subject of abstention and “special circumstances.”
Dombrowski made it clear that state court proceedings had not commenced within the meaning of § 2283 when the federal court granted the relief sought. In Cameron the claims of vagueness, overbreadth, bad faith and harassment were ultimately rejected by the three-judge district court. On appeal the Supreme Court affirmed the decision of the lower court holding that the anti-picketing statute was valid and concluding that the record did not establish plaintiff’s charges of bad faith. The facts were fully developed in Cameron. The Court stated:
Federal interference with a State’s good-faith administration of its criminal laws “is peculiarly inconsistent with our federal framework” and a showing of “special circumstances” beyond the injury incidental to every proceeding brought lawfully and in good faith is requisite to a finding of irreparable injury sufficient to * * injunction.
Cameron v. Johnson, 390 U.S. 611, 618, 88 S.Ct. 1335, 1339. Zwickler is inconclusive because it did not deal with a state prosecution actually in progress. Rather it dealt with a “threatened prosecution” in the Dombrowski-type situation. The three-judge court in Zwickler abstained. The case did not involve § 2283 or a pending state prosecution. *954It is interesting to note that on its second appearance, Golden v. Zwickler, 394 U.S. 103, 89 S.Ct. 956, 22 L.Ed.2d 113 (1969), the Supreme Court reversed the three-judge district court for granting a declaratory judgment, because the threat of state prosecution was not real and “a hypothetical threat is not enough.” The above cited cases and numerous other decisions compel a consideration of fully developed facts; that is why this case must be remanded.
II
The record facts before us are not so “bare-boned”, “emaciated and skeletonized” that our decision must be made in a factual vacuum. Accordingly, I proceed to a consideration of certain facts which are disclosed. Without dispute the record demonstrates that the plaintiffs had paraded, picketed and protested in Mobile, Alabama, without interference, since the summer of 1968. The controversial requests for a permit to parade was filed on April 25, 1969. After full consideration it was denied and written reasons were assigned by the City Commission on April 28, 1969. The application for the permit stated that the parade was to be held between 3 o’clock p. m. and 5 o’clock p. m. on May 6, 1969, beginning at a point on Davis Avenue and ending at the Municipal Auditorium. It was a widely publicized fact that the Junior Miss Pageant was to be conducted that very evening. Because the finals were to be telecast nationally beginning at 6:30 p. m. the audience for the telecast was required to be in the Auditorium not later than 5:45 p. m. Since a large audience was expected, extremely heavy street traffic in the area was reasonably forecast for several hours prior to the performance. The Pageant had been scheduled for months.
The application for the permit stated that there would be 10,000 participants in the parade. Realizing that this additional mass of people would assemble at a time when traffic would already be congested for the Junior Miss Pageant, the City Commission assigned in writing five reasons for denying the permit: (1) interruption of the safe and orderly movement of other traffic, (2) diversion of large numbers of police officers, (3) interference with fire, police and ambulance service arising out of the concentration of a large number of persons at the assembly point, (4) the likelihood that such a large concentration of people in one area would result in disorder, injury to persons and the destruction of property, and (5) the physical limitations of the streets and public grounds in the area.
In addition to police officers, responsible city officials made sworn statements that the plaintiffs or those whom they represented had asserted that they would “tear up the town” and use “any means” to get what they wanted. These statements assert that one of the leaders who actually signed the application for the permit stated, “We have trained killers in town” and “Mobile could become anoher Watts or Detroit.” Others asserted that there was a high degree of tension in the city on the date involved and thought that the officials were justified in feeling that there was a clear and present danger of violence and destruction. Some of these facts are disputed by the plaintiffs. The record presents conflicts between the several affidavits filed in court.
Although I do agree that the facts should be fully developed, it appears to me that the case at hand is remarkably similar to the problems presented in Brooks v. Briely, 274 F.Supp. 538 (N.D. Tenn.1967). While it is true that violence had already developed in Brooks, substantially the same questions which we must decide arose as to state restraint on the exercise of First Amendment rights. It was concluded that injunctive relief was not appropriate and that § 2283 should not be circumvented by the issuance of a declaratory judgment. That decision was affirmed per curiam by the Supreme Court, 391 U.S. 361, 88 S.Ct. 1671, 20 L.Ed.2d 647 *955(1968).2 Moreover, it has long been settled law that courts will not anticipate constitutional questions but will wait until a case is presented which requires the resolution of a constitutional issue. Additionally, courts will not decide a constitutional question although properly presented if some other legitimate ground exists upon which to decide the issue. Clay v. Sun Ins. Office Ltd., 363 U.S. 207, 80 S.Ct. 1222, 4 L.Ed.2d 1170 (1960); Ashwander v. TVA, 297 U.S. 288, 346-347, 56 S.Ct. 466, 80 L.Ed. 688 (1936) (Brandéis dissenting in part); State of Texas v. Grundstrom, 404 F.2d 644, 648 (5th Cir. 1968). By an unremitting repetition of the fear of a “chilling effect”, the importance of First Amendment rights, a condemnation of abstention and other similar broad general expressions, the majority opinion evidences an avid desire to declare Mobile’s ordinances facially invalid on a record which is factually deficient. Indeed, the opinion seems to seize the opportunity to pass upon constitutional issues now pending in the Supreme Court. See footnote 4 stating that probable jurisdiction has been noted in Stein v. Batchelor (N.D.Tex.) 300 F.Supp. 602, 396 U.S. 954, 90 S.Ct. 428, 24 L.Ed.2d 419, argued sub nom. Dyson v. Stein, 397 U.S. 982, 90 S.Ct. 1111, 25 L.Ed.2d 392. See also footnote 6 wherein it is observed that the relationship between § 2283 and certain civil rights statutes is now pending before the Supreme Court.
It is settled law that states have a legitimate interest in imposing reasonable restrictions on the time, place, duration or manner of permitting parades, demonstrations and picketing. Cox v. State of Louisiana, 379 U.S. 536, 85 S.Ct. 453, 13 L.Ed.2d 471; Wright v. City of Montgomery, 406 F.2d 867 (5th Cir. 1969). Every ease involving First Amendment rights does not have to be a federal case. State courts have been accorded full competence in this area. Atlanta Coast Line v. Brotherhood of Locomotive Engineers, supra; Walker v. Birmingham, 388 U.S. 307, 87 S.Ct. 1824, 18 L.Ed.2d 1210 (1967).
Ill
In the sensitive field of state-federal relations we áre not required to act timidly but we should proceed cautiously. The preamble to the Constitution does not purport to guarantee individual rights, but it does set forth what this union of states is all about. It does not limit the Bill of Rights but it does serve as a key to an interpretation of the responsibilities involved as well as the rights therein conferred and secured.
Riots and bombings which are currently taking place all over the country resulting in the destruction of church buildings, government structures, university property, statutes, monuments, and private property, often accompanied by deadly physical assault upon police officers and private citizens alike, are ominous warnings which should not be lightly considered or brushed aside. I take judicial notice of the fact that high public officials, both state and national, have been targets of unseemly conduct and actual assault by persons who claimed to be exercising First Amendment rights of free expression. Many such acts have their origin in circumstances in which some participants falsely claim that they are assembling peaceably, protesting non-violently, or, asserting their grievances in an orderly and acceptable manner. From that vantage point and that strategic position they move into destructive action and criminal anarchy, inflicting pain, suffering and chaos on innocent and unsuspecting citizens. Contrary to the aims and purposes of the Constitution they are engaged in conduct calculated to thwai’t a more perfect union, destroy justice, undermine domestic tranquility, impede the common defense, *956oppose the general welfare, and to intercept the blessings of liberty now.3
Under our system of federalism we have declined to establish a national police force. Rather we have chosen to rely, wisely in my opinion, upon state and municipal governments, for protection from lawlessness. These governments have made serious mistakes, but federal authority and power should take over only when such intrusion is unequivocally necessary. To unduly disrupt, restrain and impede local authorities in reasonable and good faith efforts to deal with apparent or threatened violence, is to decree our own demise as a well ordered and properly regulated society. We must be cautious not to permit the destruction of liberty by those who falsely pretend to act in its behalf, and who deny to others the very rights they claim to be exercising. Time and time again there is a common and constant accusation of bad faith on the part of law enforcement agencies both national and local, a claim that legitimate activity has been “chilled” in the assertion of constitutional rights, and the utterance of unsecured promises that only pure and nonviolent motives are at stake. In addition there are allegations of irreparable injury, the necessity for extraordinary, immediate and emergency relief, brutality, harassment, persecution and a demand for a wide right-of-way upon which to engage in unrestrained and unregulated conduct at once — now.
It is one thing to render a sweeping decree in the well protected and guarded chambers of a federal court, but it is quite another to decide constitutional questions down on the streets where the problems arise, when policemen are often required to act in menacing and threatening circumstances. Policemen will be helpless if we blind them to the obvious, suppress the evidence they obtain and shackle their hands in the midst of threatened trouble. They too will be “chilled” in the performance of their duty, the primary object of which is to prevent lawless activity, not simply to detect and punish the lawless.
Upon remand there should be a full presentation of evidence relative to the following issues: bad faith or good faith of all parties involved; whether there has been a pattern of arbitrary and capricious restraint of the plaintiffs; the existence vel non of “special circumstances” beyond the normal injury which is incidental to every prosecution, even those in good faith; a determination whether there is great and immediate danger of irreparable harm to the plaintiffs; the emergency nature of the circumstances; the standing of the plaintiffs to seek relief; and whether extraordinary relief is necessary. With a full disclosure of the relevant circumstances, the district court will then be in a position to render a proper decree denying or granting relief in accordance with recognized equitable principles.
. See Maraist, Federal Injunctive Relief against State Court Proceedings: The Significance of Dombrowski, Texas L.Rev. 1970, 535; Note, The Federal Anti-Injunction Statute and Declaratory Judgments in Constitutional Litigation, 83 Harv.L.Rev. 1870, 1877-78 n. 38 (1970).
. I can not agree with the assertion of the majority in footnote 7 that Brooks v. Briely was affirmed “on other grounds.” It was flatly affirmed. Johnson v. Cameron was the only case cited.
. The preamble asserts:
We the people of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquillity, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.