In The

Supreme Court of the United States




Decided June 19, 1985

Justice O’Connor, Concurring

Topic: First Amendment*Court vote: 6–2
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Joining O'Connor opinion: Chief Justice BURGER Chief Justice BURGER Justice REHNQUIST Justice REHNQUIST
Citation: 472 U.S. 491 Docket: 84–28Audio: Listen to this case's oral arguments at Oyez

* As categorized by the Washington University Law Supreme Court Database

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Only days after the State of Washington adopted the moral nuisance law at issue here, appellees launched a constitutional attack in Federal District Court. Although the statute has never been enforced or authoritatively interpreted by a state court, appellees allege that it applies to constitutionally protected expression and is facially invalid. Because I believe that the federal courts should have abstained and allowed the Washington courts an opportunity to construe the state law in the first instance, I think the proper disposition of these cases would be to vacate the judgment of the Court of Appeals on that ground. The Court, however, rejects that course and reaches the merits of the controversy. I join the opinion of the Court because I agree that the Court of Appeals erred in declaring the statute invalid on its face.

Although federal courts generally have a duty to adjudicate federal questions properly before them, this Court has long recognized that concerns for comity and federalism may require federal courts to abstain from deciding federal constitutional issues that are entwined with the interpretation of state law. In Railroad Comm'n v. Pullman Co., 312 U. S. 496 (1941), the Court held that where uncertain questions of state law must be resolved before a federal constitutional question can be decided, federal courts should abstain until a state court has addressed the state questions. Id. at 312 U. S. 501 ; see also Hawaii Housing Authority v. Midkiff, 467 U. S. 229, 467 U. S. 236 -237 (1984). This doctrine of abstention acknowledges that federal courts should avoid the unnecessary resolution of federal constitutional issues and that state courts provide the authoritative adjudication of questions of state law.

Attention to the policies underlying abstention makes clear that in the circumstances of these cases, a federal court should await a definitive construction by a state court rather than precipitously indulging a facial challenge to the constitutional validity of a state statute. There can be no doubt that a state obscenity statute concerns important state interests. Such statutes implicate

the quality of life and the total community environment, the tone of commerce in the great city centers, and, possibly, the public safety itself

Paris Adult Theatre I v. Slaton, 413 U. S. 49, 413 U. S. 58 (1973). The nature of the overbreadth claim advanced by appellees suggests that abstention was required because the Washington statute is "fairly subject to an interpretation which will render unnecessary or substantially modify the federal constitutional question." Harman v. Forssenius, 380 U. S. 528, 380 U. S. 535 (1965).

The First Amendment overbreadth doctrine allows a challenge to the validity of a statute on its face only if the law is substantially overbroad. City Council of Los Angeles v. Taxpayers for Vincent, 466 U. S. 789, 466 U. S. 799 -801 (1984); New York v. Ferber, 458 U. S. 747, 458 U. S. 769 -773 (1982). Thus, analysis of the constitutional claims advanced by appellees necessarily requires construction of the Washington statute to assess its scope. Id. at 458 U. S. 769, n. 24; Broadrick v. Oklahoma, 413 U. S. 601, 413 U. S. 618, n. 16 (1973) ("[A] federal court must determine what a state statute means before it can judge its facial constitutionality"). Furthermore, a narrowing construction of a statute might obviate any challenge on overbreadth grounds. E.g., id. at 413 U. S. 617 -618 (relying on interpretation of State Personnel Board and Attorney General to reject overbreadth claim). Where a state statute has never been construed or applied, it seems rather obvious that interpretation of the statute by a state court could substantially alter the resolution of any claim that the statute is facially invalid under the Federal Constitution.

The Court of Appeals opined that the Washington statute is not susceptible to a limiting construction and therefore any interpretation by the state court would "neither eliminate nor materially change the constitutional issues presented here." 725 F.2d 482, 488 (1984). This assertion is simply implausible. As noted in the opinion of this Court, the conclusion below that the state statute reaches any expression protected by the First Amendment rests on a dubious interpretation of the word "lust" as used in the statute. Ante at 472 U. S. 500 -501, n. 10. Both the text and the background of the Washington statute indicate that the state legislature sought to conform the moral nuisance law to the constitutional standards outlined by this Court in Miller v. California, 413 U. S. 15 (1973). Moreover, the state courts have demonstrated their willingness to construe state obscenity laws in accord with Miller. See State v. J-R Distributor, Inc., 82 Wash.2d 584, 512 P.2d 1049 (1973), cert. denied, 418 U. S. 949 (1974).

Apart from its unwarranted belief that the statute is not fairly subject to a limiting construction, the Court of Appeals asserted that Pullman abstention should "almost never" apply where a state statute is challenged on First Amendment grounds "because the constitutional guarantee of free expression is, quite properly, always an area of particular federal concern." 725 F.2d at 488. This Court has never endorsed such a proposition. See Babbitt v. Farm Workers, 442 U. S. 289, 442 U. S. 306 -312 (1979). On the contrary, even in cases involving First Amendment challenges to a state statute, absention may be required

'in order to avoid unnecessary friction in federal-state relations, interference with important state functions, tentative decisions on questions of state law, and premature constitutional adjudication.'

Id. at 442 U. S. 306, quoting Harman v. Forssenius, supra, at 380 U. S. 534 ; see also Harrison v. NAACP, 360 U. S. 167, 360 U. S. 176 -178 (1959).

The decision of the Court of Appeals represents a premature and avoidable interference with the enforcement of state law in an area of special concern to the States. Speculation by a federal court about the meaning of a state statute in the absence of prior state court adjudication is particularly gratuitous when, as is the case here, the state courts stand willing to address questions of state law on certification from a federal court. Wash.Rev.Code §§ 2.60.010-2.60.900 (1983); Wash. Rule App. Proc. 16.16. Cf. Bellotti v. Baird, 428 U. S. 132, 428 U. S. 150 -151 (1976). In my view, the state courts should have been afforded an opportunity to construe the Washington moral nuisance law in the first instance.

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