(dissenting).
In my view, Sec. 947.01(1), Wis.Stats., as construed in State v. Givens, 28 Wis.2d 109, 135 N.W.2d 780 (1965), is invalid on its face because it is overly broad. It encompasses within its prohibition forms of expression which are protected by the First and Fourteenth Amendments to the Constitution of the United States.
In Givens it was contended that on its face Sec. 947.01(1) was fatally vague because it condemns “otherwise disorderly conduct.” To meet this challenge, the Court gave content to “otherwise disorderly conduct” by construing it to mean conduct “having a tendency to disrupt good order and to provoke a disturbance.” 28 Wis.2d, at 115, 135 N.W.2d, at 784. To be prohibited, the conduct need not be violent, abusive, indecent, profane, boisterous, or unreasonably loud; it need only have a tendency to disrupt good order and to provoke a disturbance. Givens has been so read by the Wisconsin Board of Criminal Court Judges in its model instruction for disorderly conduct cases. Model instruction 1900 (Wisconsin Jury Instructions — Criminal, volume 2, 1966), citing Givens, includes this sentence: “Conduct is disorderly although it may not be violent, abusive, indecent, profane, boisterous or unreasonably loud; if it is of a type which tends to disrupt good order and provoke a disturbance.” The words of the Supreme *139Court of Wisconsin in Givens are as much a part of the statute as if the legislature had put them there. Winters v. People of State of New York, 333 U.S. 507, 514, 68 S.Ct. 665, 92 L.Ed. 840 (1948); Albertson v. Millard, 345 U.S. 242, 244, 73 S.Ct. 600, 97 L.Ed. 983 (1953).
These plaintiffs are not required to show that their conduct, which is the subject of-the criminal actions pending against them in the state courts, could not be made punishable by a properly drawn statute. It is enough that Sec. 947.01(1), as construed in Givens, may be applied to conduct protected by the First Amendment. “For in appraising a statute’s inhibitory effect upon such rights, this Court has not hesitated to take into account possible applications of the statute in other factual contexts beyond that at bar. Thornhill v. State of Alabama, 310 U.S. 88, 97-98, 60 S.Ct. 736, 741-742, 84 L.Ed. 1093; Winters v. New York, supra, at 518-520, 68 S. Ct. 665, 671-672, 92 L.Ed. 840. Cf. Staub v. City of Baxley, 355 U.S. 313, 78 S.Ct. 277, 2 L.Ed.2d 302.’’ N.A.A.C.P. v. Button, 371 U.S. 415, 432, 83 S.Ct. 328, 337, 9 L.Ed.2d 405 (1963). See Aptheker v. Secretary of State, 378 U.S. 500, 516-517, 84 S.Ct. 1659, 12 L. Ed.2d 992 (1964). Thus, we need accept neither the allegations of the complaint in this court with respect to what the plaintiffs were actually doing at the times and places in question, nor the allegations of the answer in this court on that subject, nor the allegations contained in the criminal complaints or amended criminal complaints against these plaintiffs now pending in the state court. Judge Gordon’s description of the alleged conduct of these plaintiffs seems to me irrelevant, as does his comparison of the conduct of the petitioners in Brown v. State of Louisiana, 383 U.S. 131, 86 S.Ct. 719,15 L.Ed.2d 637 (1966), with the alleged conduct of the plaintiffs here.
As N.A.A.C.P. v. Button instructs us, we are to take into account “possible applications of [Sec. 947.01(1)] in other factual contexts beyond that at bar.” A classic, practical, and realistic example is the conduct of a speaker who expresses his views at an appropriate time and place and in a subdued manner, but whose views so offend his listeners that they are moved to disrupt good order and to effect a disturbance. The same may be true of otherwise discreet and appropriate picketing, standing, or sitting, the significance of which is accurately comprehended by others and resented by them. In my view, applications of See. 947.01(1), as construed in Givens, to such “factual contexts beyond that at bar” are not only “possible applications” (371 U.S., at 432, 83 S.Ct. at 337); these applications are probable and even necessary applications of a statute which condemns conduct “having a tendency to disrupt good order and to provoke a disturbance.”
The Supreme Court of the United States has declared repeatedly that a state may not constitutionally prohibit the expression or advocacy of ideas by conduct which may have a tendency to provoke antagonists to break the peace.
In Terminiello v. Chicago, 337 U.S. 1, 69 S.Ct. 894, 93 L.Ed. 1131 (1949), the petitioner had been found guilty by a jury of violating Chicago’s disorderly conduct ordinance which employed the phrase “breach of the peace”. The trial court had instructed the jury that breach of the peace consists of any “misbehavior which violates the public peace and decorum” ; and that the “misbehavior may constitute a breach of the peace if it stirs the public to anger, invites dispute, brings about a condition of unrest, or creates a disturbance, or if it molests the inhabitants in the enjoyment of peace and quiet by arousing alarm.” 337 U.S., at 3, 69 S.Ct. at 895. The Supreme Court reversed the conviction. It held that the instruction to the jury was “as binding on us as though the precise words had been written into the ordinance.” Thus, the ordinance as construed “permitted conviction of petitioner if his speech stirred people to anger, invited public dispute, or brought about a con*140dition of unrest. A conviction resting on any of those grounds may not stand.” (Emphasis mine.) 337 U.S., at 4-5, 69 S.Ct. at 896.
Edwards v. South Carolina, 372 U.S. 229, 83 S.Ct. 680, 9 L.Ed.2d 697 (1963), involved a conviction for the common law crime of breach of the peace. The Court found (372 U.S., at 234, 83 S.Ct. at 683) that in affirming the conviction, the Supreme Court of South Carolina had defined “breach of the peace” as:
“ ‘a violation of public order, a disturbance of the public tranquility, by any act or conduct inciting to violence * * *, it includes any violation of any law enacted to preserve peace and good order. It may consist of an act of violence or an act likely to produce violence. It is not necessary that the peace be actually broken to lay the foundation for a prosecution of this offense. If what is done is unjustifiable and unlawful, tending with sufficient directness to break the peace, no more is required. Nor is actual personal violence an essential element in the offense * * *.
“ ‘By “peace,” as used in the law in this connection, is meant the tranquility enjoyed by citizens of a municipality . or community where good order reigns among its members, which is the natural right of all persons in political society.’ 239 S.C., at 343-344, 123 S.E.2d, at 249.”
The Supreme Court of the United States reversed the conviction. It noted that the petitioners had been “convicted upon evidence which showed no more than that the opinions which they were peaceably expressing were sufficiently opposed to the views of the majority of the community to attract a crowd and necessitate police protection. The Fourteenth Amendment does not permit a State to make criminal the peaceful expression of unpopular views.” 372 U.S., at 237, 83 S.Ct. at 684. The Court quoted approvingly from Terminiello and declared (372 U.S., at 238, 83 S.Ct. at 685):
“As in the Terminiello case, the courts of South Carolina have defined a criminal offense so as to permit conviction of the petitioners if their speech ‘stirred people to anger, invited public dispute, or brought about a condition of unrest. A conviction resting on any of those grounds may not stand.’ Id. [Terminiello v. Chicago, 337 U.S. 1], at 5, 69 S.Ct., [894,] at 896 [93 L.Ed. 1131].”
Cox v. State of Louisiana, 379 U.S. 536, 85 S.Ct. 453, 13 L.Ed.2d 471 (1965), involved a conviction under a Louisiana “disturbing the peace” statute which provided :
“Whoever with intent to provoke a breach of the peace, or under circumstances such that a breach of the peace may be occasioned thereby * * * crowds or congregates with others * * * in or upon * * * a public street or public highway, or upon a public sidewalk, or any other public place or building * * * and who fails or refuses to disperse and move on * * * when ordered so to do by any law enforcement officer of any municipality, or parish, in which such act or acts are committed, or by any law enforcement officer of the state of Louisiana, or any other authorized person * * * shall be guilty of disturbing the peace.” La.Rev.Stat. § 14:103.1 (Cum.Supp.1962).
The Supreme Court considered in detail the specific conduct of the appellant and held that the Louisiana statute could not constitutionally be applied in the particular case. 379 U.S., at 544-551, 85 S.Ct. at 458-462. It then continued (379 U.S., at 551-552, 85 S.Ct. at 462-463):
“There is an additional reason why this conviction cannot be sustained. The statute at issue in this case, as authoritatively interpreted by the Louisiana Supreme Court, is unconstitutionally vague in its overly broad scope. The statutory crime consists of two elements: (1) congregating with others ‘with intent to provoke a breach of the peace, or under circumstances such that a breach of the peace may be occasioned,’ and (2) a refusal to move on after having been ordered *141to do so by a law enforcement officer. While the second part of this offense is narrow and specific, the first element is not. The Louisiana Supreme Court in this case defined the term ‘breach of the peace’ as ‘to agitate, to arouse from a state of repose, to molest, to interrupt, to hinder, to disquiet.’ 244 La., at 1105, 156 So.2d, at 455. In Edwards, defendants had been convicted of a common-law crime similarly defined by the South Carolina Supreme Court. Both definitions would allow person to be punished merely for peacefully expressing unpopular views. Yet, a ‘function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea. That is why freedom of speech * * * is * * * protected against censorship or punishment * * *. There is no room under our Constitution for a more restrictive view. For the alternative would lead to standardization of ideas either by legislatures, courts, or dominant political or community groups.’ Terminiello v. Chicago, 337 U.S. 1, 4-5, 69 S.Ct. 894, 896, 93 L.Ed. 1131. In Terminiello convictions were not allowed to stand because the trial judge charged that speech of the defendants could be punished as a breach of the peace ‘ “if it stirs the public to anger, invites dispute, brings about a condition of unrest, or creates a disturbance, or if it molests the inhabitants in the enjoyment of peace and quiet by arousing alarm.” ’ Id., 337 U.S., at 3, 69 S.Ct., at 895. The Louisiana statute, as interpreted by the Louisiana court, is at least as likely to allow conviction for innocent speech as was the charge of the trial judge in Terminiello. Therefore, as in Terminiello and Edwards the conviction under this statute must be reversed as the statute is unconstitutional in that it sweeps within its broad scope activities that are constitutionally protected free speech and assembly.”
The Louisiana statute, thus held invalid on its face as being overly broad, included the phrase: “under circumstances such that a breach of the peace may be occasioned thereby.” I consider this language indistinguishable, in terms of overbreadth, from the words “having a tendency to disrupt good order and to provoke a disturbance.” Thus, I consider Cox unambiguous authority for the proposition that Sec. 947.01(1) is unconstitutional “in that it sweeps within its broad scope activities that are constitutionally protected free speech and assembly.” 379 U.S., at 552, 85 S.Ct. at 463.
When Brown v. State of Louisiana, 383 U.S. 131, 86 S.Ct. 719, 15 L.Ed.2d 637 (1966), reached the court, it was called upon to deal with another conviction under the Louisiana “disturbing the peace” statute which it had considered in Cox. In Cox the conduct had occurred on public streets and sidewalks; in Brown, in a public library. The court recalled (383 U.S., at 134-135, 86 S.Ct. at 720) that in Cox it had invalidated the statute on its face for overbreadth and commented:
“Since the present case was decided under precisely the statute involved in Cox but before our decision in that case was announced, it might well be supposed that, without further ado, we would vacate and remand in light of Cox. But because the incident leading to the present convictions occurred in a public library and might be thought to raise materially different questions, we have heard argument and have considered the case in extenso.”
The Court then proceeded to hold that the “public building phase” of the statute (Black, J., dissenting, 383 U.S., at 157, 731; Brennan, J., concurring, 383 U.S., at 144, 725) could not constitutionally be applied to punish the peti*142tioners’ actions in the circumstances of this case. Concurring in the judgment (383 U.S., at 143-150, 724-728), Mr. Justice Brennan expressed the view that the Louisiana statute could not properly be considered to consist of two discrete “phases”, one dealing with public streets and sidewalks and another with public buildings; therefore, the Cox declaration of invalidity for overbreadth felled the whole statute once and for all. Even assuming the correctness of the two-phase analysis, he was of the opinion that the public building phase was itself invalid on its face by reason of over-breadth.
One is left uncertain why neither of the two alternative views of Justice Brennan was accepted by the Court in entering its judgment reversing the convictions in Brown. It is clear, however, that the Court’s election to invalidate the “public buildings phase” of the statute on other grounds did not signal the death of the overbreadth doctrine. See Elfbrandt v. Russell, 384 U.S. 11, at 18-19, 86 S.Ct. 1238, 16 L.Ed.2d 321 (1966). Cf. Ashton v. Kentucky, 384 U.S. 195, 200-201, 86 S.Ct. 1407, 16 L.Ed.2d 469 (1966).
In any event, it is firmly developed law that a state may not constitutionally punish the expression or advocacy of ideas by conduct because “it stirs the public to anger, invites dispute, brings about a condition of unrest, or creates a disturbance” (emphasis mine), Terminiello, 337 U.S. 1, at 3, 69 S.Ct. 894, at 895, nor may it punish persons “merely for peacefully expressing unpopular views,” Cox, 379 U.S., at 551, 85 S.Ct. 162. If the “possible applications of the statute,” N.A.A.C.P. v. Button, 371 U.S., at 432, 83 S.Ct. at 337, are such that “it sweeps within its broad scope activities that are constitutionally protected free speech and assembly,” Cox, 379 U.S., at 552, 85 S.Ct. at 463, the statute must fall. These are the considerations which persuaded the three-judge federal court in Carmichael v. Allen, D.C., 267 F.Supp. 985 (N.D.Ga., Atlanta Division, Civil Action No. 10421, December 13, 1966) that it must declare invalid on its face an Atlanta disorderly conduct ordinance making it unlawful “for any person to act in a violent, turbulent, quarrelsome, boisterous, indecent or disorderly manner, or to use profane, vulgar or obscene language, or to do anything tending to disturb the good order, morals, peace or dignity of the City.” 1
I do not understand either of the judges who constitute a majority here to say that the “possible applications” test, enunciated in N.A.A.C.P. v. Button and elsewhere, is not to be applied in the area of First Amendment freedoms. Nor do I understand either of them to say that a statute would not be invalid on its face if, so tested, it may be applied to prohibit the expression or advocacy of ideas by conduct which has a tendency to provoke a disorderly reaction by antagonized onlookers or bystanders.
Judge Gordon seems to say that the “possible applications” test is inappropriate here because Sec. 947.01(1) does not prohibit conduct unless it both: (1) is violent, abusive, indecent, profane, boisterous, or unreasonably loud; and (2) has a tendency to disrupt good order and to provoke a disturbance. I believe it is not open to us to save Sec. 947.01(1) by a construction which flatly opposes the construction by the Supreme Court of Wisconsin in Givens.
Judge Fairchild seems to make two points. The first is “that it is at least arguable that the statute is not concerned *143with the substance of any idea which may be expressed or advocated by conduct nor with the tendency of such expression or advocacy to provoke a disorderly reaction by bystanders who are offended, except in the limited fields of indecent or profane conduct.” The second is that when the constitutional issues are “debatable”, or when the statute is not marked by “patent invalidity”, or when, in the quoted language of the American Law Institute Reporter, the constitutional question involved has not been “authoritatively determined with regard either to the particular statute in question or one that is indistinguishable from it”, the three-judge federal court should, and may indeed be compelled to, abstain and permit state court resolution of the federal constitutional issue.
With respect to the first point, it is unclear whether Judge Fairchild refers to the statute as enacted or as construed in Givens. Because we must test it as construed in Givens, we must consider Judge Fairchild’s “arguable” construction as it applies both to conduct described by the six adjectives in Sec. 947.01(1) (violent, abusive, indecent, profane, boisterous, or unreasonably loud) and also to conduct merely “having a tendency to disrupt good order and to provoke a disturbance.” Nothing whatever in this latter phrase suggests that if the “tendency” is a function of the substance of any idea expressed or advocated by conduct, then the conduct is excluded from the prohibition. “[W]e will not presume that the statute curtails constitutionally protected activity as little as possible.” N.A.A.C.P. v. Button, 371 U.S. 415, at 432, 83 S.Ct. at 337.
Assuming, however — incorrectly, I believe — that we may strain to find an arguable and saving construction of Sec. 947.01(1) which is not inconsistent with Givens, the construction suggested does not seem to me to rise to a reasonably minimal level of arguability or debatability. It is conceded that with respect to “indecent” conduct and “profane” conduct, Sec. 947.01(1) does render operative both the substance of ideas expressed or advocated by conduct, and the tendency of such expression or advocacy to provoke a disorderly reaction by bystanders who are offended. To these two categories must be added “abusive” conduct. In Lane v. Collins, 29 Wis.2d 66, 138 N.W.2d 264 (1965), decided after Givens, the Supreme Court of Wisconsin dealt with a city ordinance the provisions of which are said to be (29 Wis.2d, at 71-72, 138 N.W.2d at 267):
“similar in import to that portion of sec. 947.01(1) * * * which makes it a misdemeanor for a person to engage ‘in * * * abusive, indecent, profane * * * conduct * * * ’ in a public or private place. The underlying reason for disorderly conduct statutes and ordinances proscribing abusive language is that such language tends to provoke retaliatory conduct on the part of the person to whom it is addressed that amounts to breach of the peace. Calling another person a ‘son-of-a-bitch’ under charged circumstances might well constitute abusive language which is likely to have that result.”
Also, to the extent that “violent” conduct may be in the form of speech, and assuming that “violent” means something other than “boisterous” or “unreasonably loud”, it appears that substance or content is necessarily an operative factor in determining whether speech is “violent”.
Moreover, the suggested construction of the phrase “having a tendency to disrupt good order and to provoke a disturbance” — namely, that it is deaf to the substance of ideas expressed or advocated by conduct — would also remove from its ambit conscious incitement of one’s sympathizers to break the peace. Such a construction would nearly nullify the phrase “to provoke a disturbance.”
Thus, the suggested construction of the phrase would require us: (1) to find in it an implicit, not explicit, limitation upon its scope which is inoperative with respect to three and perhaps four of *144the six categories of conduct specifically described in- the statute; and (2) to remove from its ambit, for no reason which its words suggest, virtually all expression or advocacy of ideas by conduct. I am obliged to say that such a construction seems to me so lacking in merit as not to be “debatable” or “arguable”, for our purposes here.
I conclude that the unconstitutionality of Sec. 947.01(1) is not seriously debatable, that it is patently invalid,2 and that the constitutional question involved has been authoritatively determined with regard to an ordinance in Terminiello, a common law crime in Edwards, and a statute in Cox, none of which, as construed by jury instructions or by state appellate courts, is significantly distinguishable from Sec. 947.01(1), as construed in Givens.
Thus I reach issues which neither member of the majority reaches: May and should this three-judge federal court declare invalid a state criminal statute which clearly violates the First and Fourteenth Amendments, or must or should this court abstain and leave this function to the state courts? If it may and should declare the statute invalid, may and should it also permanently enjoin further proceedings in a pending prosecution in the state courts? I share fully with the other members of this court a powerful disinclination to interfere with the state’s administration of its criminal laws, and an awareness that the devotion of the Wisconsin state judiciary to the Constitution of the United States is equal to that of the federal judiciary. However, the circumstances here do not permit us to indulge so readily our natural disposition to defer to the state courts.
In Givens, two state trial courts and the Supreme Court of Wisconsin refrained from practicing the method of constitutional analysis which, in my view, is demanded by Thornhill, Winters, N. A. A. C. P. v. Button, Aptheker, and other decisions. In Givens, the Supreme Court of Wisconsin undertook to fill out the provisions of Sec. 947.01(1) with words which rendered it fatally over-broad. These words are now enshrined in a model jury instruction approved and published by the Wisconsin Board of Criminal Court Judges. I would notice judicially, as I consider us obliged to do, that the state trial courts may be expected to use this model instruction. It comes to this: the strong probability is that the cases of these plaintiffs, and others prosecuted for violations of Sec. 947.01(1), will be governed by the statute as construed in Givens and as reflected in the model instructions. On appeal to the Supreme Court of Wisconsin from convictions, it would be necessary for them to persuade that appellate court to engage in a method of constitutional analysis from which it refrained in Givens, and then either to change radically the construction enunciated in Givens, or to reach a conclusion with respect to the constitutionality of Sec. 947.01(1) which would be inconsistent with, and perhaps contradictory to, the conclusion reached in Givens. Failing in all this, they would be left to seek review in the Supreme Court of the United States.
*145Moreover, this is not a situation in which we are property asked to defer to the state trial courts to permit them to make findings of fact in the particular case and then to shape the statute by application and non-application to these facts or to those. Instead, the state courts at both the trial and appellate level would be obliged to engage in the very analysis of the statute’s breadth in which I have engaged here, and, as I see it, to reach the inevitable conclusion that the statute, as construed in Givens, is fatally overbroad. Ir short, the only reason to leave to the state courts the opportunity to make this analysis and to reach this conclusion is that, the second time around, the Supreme Court of Wisconsin might discard the Givens construction and substitute for it a saving construction of the statute.
Fortunately, we find in Dombrowski v. Pfister, 380 U.S. 479, 85 S.Ct. 1116, 14 L.Ed.2d 22 (1965), rather specific guidance in this situation. There (380 U.S., at 483-487, 85 S.Ct. at 1119) the court defined the limited reach of the abstention doctrine enunciated in Douglas v. City of Jeannette, 319 U.S. 157, 63 S.Ct. 877, 87 L.Ed. 1324, and declared (at 486-487, 85 S.Ct. at 1120-1121):
“A criminal prosecution under a statute regulating expression usually involves imponderables and contingencies that themselves may inhibit the full exercise of First Amendment freedoms. See, e. g., Smith v. People of State of California, 361 U.S. 147, 80 S.Ct. 215, 4 L.Ed.2d 205. When the statutes also have an overbroad sweep, as is here alleged, the hazard of loss or substantial impairment of those precious rights may be critical. For in such cases, the statutes lend themselves too readily to denial of those rights. The assumption that defense of a criminal prosecution will generally assure ample vindication of constitutional rights is unfounded in such cases. See Baggett v. Bullitt, supra, 377 U.S. at 379, 84 S.Ct., at 1326. For ‘[t]he threat of sanctions may deter * * * almost as potently as the actual application of sanctions. * * * ’ NAACP v. Button, 371 U.S. 415, 433, 83 S.Ct. 328, 338, 9 L.Ed.2d 405. Because of the sensitive nature of constitutionally protected expression, we have not required that all of those subject to overbroad regulations risk prosecution to test their rights. For free expression — of transcendent value to all society, and not merely to those exercising their rights — might be the loser. Cf. Garrison v. State of Louisiana, 379 U.S. 64, 74-75, 85 S.Ct. 209, 215, 216, 13 L.Ed.2d 125. For example, we have consistently allowed attacks on overly broad statutes with no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with the requisite narrow specificity. Thornhill v. State of Alabama, 310 U.S. 88, 97-98, 60 S.Ct. 736, 741, 742, 84 L.Ed. 1093; NAACP v. Button, supra, 371 U.S. at 432-433, 83 S.Ct., at 337-338; cf. Aptheker v. Secretary of State, 378 U.S. 500, 515-517, 84 S.Ct. 1659, 1668-1669, 12 L.Ed. 2d 992; United States v. Raines, 362 U.S. 17, 21-22, 80 S.Ct. 519, 522-523, 4 L.Ed.2d 524. We have fashioned this exception to the usual rules governing standing, see United States v. Raines, supra, because of the ‘ * * * danger of tolerating, in the area of First Amendment freedoms, the existence of a penal statute susceptible of sweeping and improper application.’ NAACP v. Button, supra, 371 U.S., at 433, 83 S.Ct., at 338. If the rule were otherwise, the contours of regulation would have to be hammered out case by case — and tested only by those hardy enough to risk criminal prosecution to determine the proper scope of regulation. Cf. Ex parte Young, supra, 209 U.S., at 147-148, 28 S.Ct., at 448-449. By permitting determination of the invalidity of these statutes without regard to the permissibility of some regulation on the facts of particular cases, we have, in effect, *146avoided making vindication of freedom of expression await the outcome of protracted litigation. Moreover, we have not thought that the improbability of successful prosecution makes the case different. The chilling effect upon the exercise of First Amendment rights may derive from the fact of the prosecution, unaffected by the prospects of its success or failure. See NAACP v. Button, supra, 371 U.S., at 432-433, 83 S.Ct., at 337-338; cf. Baggett v. Bullitt, supra, 377 U.S., at 378-379, 84 S.Ct., at 1326; Bush v. Orleans School Board, D.C., 194 F.Supp. 182, 185, affirmed sub nom. Tugwell v. Bush, 367 U.S. 907, 81 S.Ct. 1926, 6 L.Ed.2d 1250; Gremillion v. United States, 368 U.S. 11, 82 S.Ct. 119, 7 L.Ed.2d 75.”
And directly pertinent to the situation presented here, the court held (at 489-490, 85 S.Ct. at 1122):
“The District Court also erred in holding that it should abstain pending authoritative interpretation of the statutes in the state courts, which might hold that they did not apply to SCEF, or that they were unconstitutional as applied to SCEF. We hold the abstention doctrine is inappropriate for cases such as the present one where, unlike Douglas v. City of Jeannette, statutes are justifiably attacked on their face as abridging free expression * * *.”
See Cameron v. Johnson, 381 U.S. 741, 85 S.Ct. 1751, 14 L.Ed.2d 715 (1965).
I conclude that we are not free to abstain from a declaration that Sec. 947.01(1) is unconstitutional because of overbreadth, and I would enter a declaratory judgment to this effect.
In Dombrowski, 380 U.S. at 479, n. 2, 85 S.Ct. 1116, 1119, the question was reserved whether 42 U.S.C. § 1983, under which the present action in this court is brought, permits a federal court to stay proceedings in a state court, despite the provisions of 28 U.S.C. § 2283. It appears that the issue — now much in conflict — may be resolved by the Supreme Court reasonably soon. I content myself to say that the logic of the doctrines exemplified in Thornhill, N. A. A. C. P. v. Button, Cox, and Dombrowski seems to me to compel the conclusion that an injunction must issue in a case such as the case at bar. The illogic of preventing the institution of, while permitting the continuance of, criminal prosecutions under an invalid statute has been remarked. Douglas, J., dissenting, in City of Greenwood v. Peacock, 384 U.S. 808, 845-846, 86 S.Ct. 1800, 16 L.Ed.2d 944 (1966); American Law Institute, Study of the Division of Jurisdiction between State and Federal Courts, Tentative Draft No. 5, May 2, 1957, pp. 112-113.3 I would enjoin the continuance of the pending criminal proceedings against these plaintiffs in the state courts.
We are not called upon to categorize today the kinds of “disorderly conduct” which the state may prohibit by a carefully drawn statute; in my view, it can constitutionally prohibit a very considerable range of disorderly conduct. We are called upon only to remind the legis*147lature that when it approaches the foothills of First Amendment freedoms, it must step with far greater care than that which marked the enactment of Sec. 947.01(1).
. I express no opinion concerning the conclusion reached in United States v. Woodard and United States v. Seelig, 376 F.2d 136 (C.A.7th, April 4, 1967, Cases Nos. 15566 and 15567), in which an Illinois disorderly conduct statute was held not void for vagueness. With respect, I do observe that the constitutionality of the statute was not analyzed by the method described in N. A. A. C. P. v. Button, supra. As a three-judge court whose decision is directly reviewable by the Supreme Court of the United States, I believe we are not bound by a decision of the Court of Appeals for the Seventh Circuit.
. Because I consider Sec. 947.01(1) invalid on the ground explained in this opinion, I refrain from detailed discussion of other possible grounds of invalidity, particularly this declaration in Givens: “Those in authority over public buildings or particular areas therein must be accorded discretion to regulate conduct therein. Such regulation must be reasonably designed to preserve good order and facilitate the public uses for which the building was intended. Such regulation must not, of course, deprive anyone of his constitutional or other legal rights.” 28 Wis.2d, at 121, 135 N.W.2d at 787. The court’s holding in this respect is not clear. If its holding is that rulemaking may be delegated to custodians of public buildings within only the guidelines just quoted, and that a deliberate and knowing violation of such a regulation constitutes a violation of Sec. 947.01(1), the statute may well be void for vagueness.
. The American Law Institute’s proposed new sections 1372(7), Tentative Draft No. 5, May 2, 1967, pp. 31-32, and commentary thereon, pp. 184 — 185 (see also new section 1312(c), p. 9, and commentary thereon, pp. 110-113) appear to me preoccupied with equal protection, as distinguished from First Amendment, situations. This distinction was heavily emphasized in State of Georgia v. Rachel, 384 U.S. 780, 792, 86 S.Ct. 1783, 16 L.Ed. 2d 925 (1966); the Court cited approvingly from People of State of New York v. Galamison, 342 F.2d 255, 269, 271 (C.A. 2d), a passage distinguishing between civil rights stated in terms of racial equality and laws “of which the due process clause and 42 U.S.C. § 1983 are sufficient examples, that confer rights in the sense, vital to our way of life, of bestowing them upon all.” Since the “possible applications” method of analysis is deemed appropriate with respect to state criminal statutes affecting First Amendment rights, redefining the relationships between state and federal courts in this area may well be quite as urgent as in the equal protection area.