(concurring).
Although I agree that the district court’s denial of a preliminary injunction should be affirmed, regretfully I cannot agree with some of the reasoning advanced by Judge Stevens in support of the affirmance.
As the majority holds, there are in this case no First Amendment problems. The only constitutional claim that is colorable embraces procedural due process, namely, that section 192.1 of the Municipal Code is so imprecisely drawn that no standards for measuring the proscribed activity are discernible from the language of the ordinance. Moreover, as the majority holds, correctly I believe, the question of vagueness cannot be raised by the plaintiffs on a hypothetical basis. The question can be asserted only with respect to their own conduct; on that score the plaintiffs are not claiming that their conduct does not come within the definition of lewdness (regardless of what meaning the term may have in other factual contexts). It seems to me that these holdings are sufficient to warrant an affirmance.
Where I part company with the majority is primarily with the following statement in Judge Stevens’ opinion:
[Plaintiffs’] attack on the ordinance may fairly be characterized as procedural rather than substantive in character. For they do not question the state’s power to regulate or prohibit their conduct. Their claim that § 192.1 is unconstitutionally vague rests on the due process requirement that a citizen must be given fair notice that his conduct is proscribed before it may provide a basis for punishment. In our opinion, this vagueness challenge does not provide a proper basis for federal interference with state civil litigation which, if it is allowed to run its course, presumably will eliminate whatever ambiguity now exists with respect to the application of the ordinance to plaintiffs’ commercial activities.
In my opinion, the claim of vagueness of a statutory provision is a proper question for a federal court to decide in a civil ease given the fact that the plaintiff has standing (using that term broadly) to assert the challenge with respect to his own conduct. If one in attempting to protect a property interest from state interference can arguably assert that his conduct is not included within the prohibitory terms of a vague statute, he ought not have to await the finality of a state proceeding against him before asserting his constitutional right to procedural due process. To require him to do so is an impermissible form of abstention. Indeed, as I read the last paragraphs of Judge Stevens’ opinion, I discern a theme of abstention which I, for myself, wish to disavow.