course of their testimony. (N.T. 186-7, 230-4) However, witnesses have not been permitted to have counsel present with them when testifying, nor have they been permitted to leave the Grand Jury room to consult with counsel concerning their testimony or questions put to them while testifying. (N.T. 187-8, Ex. P-10, pp. 2-3) Individual plaintiffs who have testified before the Grand Jury were directed not to discuss questions put to them and their answers with any person other than their own lawyer; and one attorney for several individual plaintiffs is not to discuss with one plaintiff what another plaintiff represented by the attorney had revealed concerning occurrences in the Grand Jury room. (N.T. 273)
11. The plaintiffs sought review of the order convening the Grand Jury as well as several rulings of Judge Sloane in the appellate courts of Pennsylvania. (N.T. 230-1) On August 27, the plaintiffs filed a petition to terminate the investigation as to them. This motion was heard and denied by the presiding judge on September 5, 1969, and no appeal was taken from that action.
12. The plaintiffs held a press conference on August 14, 1969 to state their views of the Grand Jury. They also on occasion have issued other press releases of similar import. (N.T. 235-43)
13. Financing for the 1500 Market Street project consists of three parts: Financing for buildings to be erected; financing for the land; and financing for temporary construction. (N.T. 22) Financing for the land was made available by way of a commitment of General Electric Pension Fund for approximately $13 million in a sale and leaseback transaction; financing for the permanent building of $63 million was to be participated in by the New York State Teachers Retirement System; and the New York City Employees Pension Fund; and temporary financing of $55 million was participated in by a group of 12 banks. (N.T. 24) The three parts of the financing are interdependent in that if the financing for one part is not forthcoming, the financing for the other parts may be cancelled as well. (N.T. 25)
14. On or about July 1, 1969, Deputy District Attorney Gilbert Stein sent a letter to several of the banks participating in the financing of the 1500 Market Street project stating that the Grand Jury of April Term 1969 was "currently conducting an investigation into alleged criminality in certain urban renewal activities", that the 1500 Market Street project and National Land were "among the subjects of investigation", that each bank was requested to appear before the Grand Jury on July 14 and that if they would not appear voluntarily, compulsory process would be arranged. (Court Ex. 1)
15. None of the persons to whom Stein sent letters on July 14 was called to testify during the week of July 14. (N.T. 98-9) Deputy District Attorney Stein sent letters to many of the lenders before July 14 stating that it would not be necessary to have them testify at that time. (Ex. P-5a)
16. On June 17, 1969, Deputy District Attorney Stein sent a letter to the Comptroller of the City of New York in response to an inquiry concerning the Grand Jury investigation. Stein stated inter alia that National Land, "its principals and its activities" and the project were under "an ongoing investigation * * * into allegations of criminality * * *." Stein further stated that "To date the grand jury has not yet made a presentment with regard to the 1500 Market Street or National Land & Investment Co. phases of its investigation." (Ex. P-6(a), 6(b)) On June 23, 1969, Stein sent a letter to the Comptroller of New York City enclosing a copy of the District Attorney's Petition and referring him to paragraph 32 thereof. (Ex. P-6(c))
17. As of September 25, National Land was precluded from going to settlement or closing for the financing of the 1500 Market Street project with the lenders because one of the prospective participants, the New York State Employees Retirement System, has refused to go to settlement as long as the Grand Jury investigation continues. (N.T. 138)
DISCUSSION AND CONCLUSIONS OF LAW
I. Denial of the Right to Free Expression
Some consideration of the policy and standards employed where state criminal proceedings are collaterally attacked is appropriate before reaching the merits of the instant case. The propriety of a collateral attack and a grant of relief thereon has generally been determined after a consideration of two separate, but frequently overlapping, concerns: whether the traditional limitations on federal equitable relief are applicable; and whether abstention is appropriate.
Federal equity courts have traditionally assumed that state courts and prosecutors observe constitutional limitations and that the normal adjudication of constitutional defenses in the course of a state criminal proceeding would assure adequate and timely vindication of constitutional rights. As the Supreme Court stated in Douglas v. City of Jeannette, 319 U.S. 157 at 163-164, 63 S. Ct. 877 at 881, 87 L. Ed. 1324:
"* * * courts of equity in the exercise of their discretionary powers should conform to this policy (of leaving generally to the state courts the investigation and trial of criminal cases arising under state laws) by refusing to interfere with or embarrass threatened proceedings in state courts save in those exceptional cases which call for the interposition of a court of equity to prevent irreparable injury which is clear and imminent; and equitable remedies infringing this independence of the states - though they might otherwise be given - should be withheld if sought on slight or inconsequential grounds. * * *
"It is a familiar rule that courts of equity do not ordinarily restrain criminal prosecutions. No person is immune from prosecution in good faith for his alleged criminal acts. Its imminence, even though alleged to be in violation of constitutional guarantees, is not a ground for equity relief since the lawfulness or constitutionality of the statute or ordinance on which the prosecution is based may be determined as readily in the criminal case as in a suit for an injunction. * * * Where the threatened prosecution is by state officers for alleged violations of a state law, the state courts are the final arbiters of its meaning and application, subject only to review by this Court on federal grounds appropriately asserted. Hence the arrest by the federal courts of the processes of the criminal law within the states, and the determination of questions of criminal liability under state law by a federal court of equity, are to be supported only on a showing of danger of irreparable injury 'both great and immediate.'"