This section contains the nature of the case and procedural background.

In Zwickler v. Koota the court held that the three-judge District Court erred in abstaining from deciding whether Zwickler, P in the instant case, was entitled to a declaratory judgment respecting the constitutionality of New York Penal Law § 781-b, now New York Election Law § 457. The court remanded it to the District Court for a determination of that question. Section 781-b makes it a crime to distribute anonymous literature in connection with an election campaign. D distributed anonymous handbills in connection with a 1964 congressional election. That conviction was reversed, on state law grounds, by the New York Supreme Court. The New York Court of Appeals affirmed in 1965 and filed a memorandum that stated that constitutional questions had not been reached. On April 22, 1966, P brought this suit. A Congressman standing for re-election in 1964 was criticized in the anonymous handbill for opposing two amendments to the 1964 Foreign Aid bill. P alleged that the Congressman 'will become a candidate in 1966 for reelection . . . and has been a political figure and public official for many years,' and that P desires and intends to distribute an anonymous leaflet again. The Congressman had left the House of Representatives for a place on the Supreme Court of New York. On remand, the three-judge court held that the prerequisites of a declaratory judgment had been established and that the fact that the Congressman who was the original target would not again stand for re-election did not affect the question. Ds appealed.

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