In this 42 U.S.C.A. § 1983 action, the officers and members of the Marshall County United League sought a preliminary injunction against Mississippi officials who had allegedly interfered with the exercise of their First Amendment rights. The District Court denied preliminary relief. We reverse and remand for proceedings not inconsistent with this opinion.

On June 28, 1974, Butler Young, Jr., a twenty-one-year-old black youth, died in Byhalia, Mississippi, from a gunshot wound inflicted by law enforcement officers of Byhalia and Marshall County, Mississippi.1 The law enforcement officers were not immediately subjected to prosecution by the state, and this delay precipitated protests and boycotts by the black community. The boycotts were organized and supervised by the Marshall County United League, an association of black citizens of Byhalia, Marshall County, Mississippi.

Subsequently, the League was enjoined by the Chancery Court of Marshall County from carrying out the boycotts. Its members and officers then attempted, without success, to enjoin these state court proceedings in federal District Court. On appeal to this Court, we reversed and directed the issuance of an injunction against the enforcement of the state injunction.2 The latter injunction is now in force and is effective to restrain the state court from interfering with the rights of the parties to engage in peaceful protests and boycotts.

District Attorney Talmadge Littlejohn presented the Butler Young, Jr. incident to the Marshall County grand jury during its August 1974 term. That body did not, however, return indictments against any of the three police officers who had custody of Young the night of his death.

After the grand jury recessed on August 21, 1974, the League prepared and circulated among the citizens of the county a leaflet which accused the law enforcement officers of Byhalia, the county sheriff's department and the state highway department of failing to conduct a serious investigation into the death of Young because he was black. The leaflet also accused Littlejohn of acting as defense attorney for the officers rather than as prosecutor. It additionally labeled the grand jury hearing a "farce." When, on September 6, 1974, the leaflet was brought to the attention of Littlejohn and Judge W. W. Brown of the Circuit Court of Marshall County, an order was immediately entered by Judge Brown calling the grand jury back into session.3 By law, the term of the Circuit Court ended at midnight, September 7, 1974. But pursuant to Judge Brown's order, the grand jury was to remain in session until it had interrogated all witnesses who, in its judgment, might have knowledge of any improper activities. Through Littlejohn, the grand jury caused subpoenas to issue to all officers and several members of the United League of Marshall County. The records and minutes of the League were also subpoenaed.

On Saturday, September 7, 1974, the grand jury reconvened and remained in session for two days. During that time Littlejohn and the grand jurors conducted an investigation into the origin of the leaflet and the information on which its accusations were based. The grand jury also attempted to ascertain if any of those responsible for the leaflet had any personal knowledge, or knew of any other person having personal knowledge, of the facts surrounding the fatal shooting of Butler Young, Jr. League members and officers were also questioned about the internal and financial operations and activities of their organization. A final report was made to the court at the conclusion of the investigation, the grand jury recommending that:

(T)he proceedings of this Grand Jury (be) transcribed by the Court Reporter and that copies of such proceedings be released to the news media, the general public, the District Attorney, the County Attorney, and the Mississippi State Tax Commission, so that a proper evaluation may be made thereof, and appropriate action taken, if advisable as to the matters contained therein.

Report of the Grand Jury, filed September 11, 1974, at 3 (Exhibit 6).

Following the issuance of this report4 the League filed its § 1983 action against Littlejohn, Judge Brown and D. Rook Moore, the County Attorney.5 The complaint alleged that the issuance of the subpoenas and the grand jury inquiries into the League's activities, organization, financing, and the leaflet were carried out in bad faith with the purpose of harassing and intimidating the plaintiffs in violation of their First Amendment rights. The plaintiffs requested a temporary, preliminary and permanent injunction6 restraining the defendants from interfering in the exercise of those rights. It further called for the expunction of portions7 of the transcript8 from the state court records and an injunction against Littlejohn and Moore prohibiting them from instituting any prosecution of plaintiffs or plaintiff class based on their grand jury testimony.9

At the outset of its discussion on the issuance of an injunction, the District Court pointed to certain issues which it believed did not require consideration.10 Stating that "the only viable question" before it was "whether the transcript should be made available to state agencies or departments and the public generally," the District Court concluded on the basis of its in camera inspection of the transcript that there had been no infringement of plaintiffs' First Amendment rights.11 The Court then denied injunctive relief, citing and quoting the anti-injunction statute, 28 U.S.C.A. § 2283, and a passage from Younger v. Harris, 1971, 401 U.S. 37, 44, 91 S. Ct. 746, 750, 27 L. Ed. 2d 669, 675.12

On the question of expunction, the District Court concluded that the state court was the proper forum to entertain such a claim. In answering the plaintiffs' contention that a state remedy might prove troublesome since it was Judge Brown who would necessarily have to hear such a case, the Court below pointed out that the plaintiffs would have open to them the right of appeal.13

Lastly, the District Court held that the plaintiffs had not met the prerequisites set forth in Canal Authority v. Callaway, 5 Cir., 1974, 489 F.2d 567, for granting extraordinary relief.

We do not agree with the District Court.

First, we take exception to the manner in which "the only viable issue" was framed. Even assuming that there was but one viable issue,14 it was not whether the transcript should be made available to state agencies or departments and the public generally. Judge Brown's October 21, 1974 order expressly stated that the grand jury proceedings were not to be made available to the public and the news media.15 Furthermore, that same order would allow not only state agencies to seek court permission to examine the grand jury proceedings but federal officials and future Marshall County grand juries as well.16

Second, for reasons discussed more fully below, we cannot agree that there was no abridgement of plaintiffs' First Amendment rights.

Third, to the extent that the District Court relied on 28 U.S.C.A. § 2283 to stay its hand, such reliance in a § 1983 action was misplaced in view of the Supreme Court's clear holding in Mitchum v. Foster, 1972, 407 U.S. 225, 92 S. Ct. 2151, 32 L. Ed. 2d 705, that § 1983 is an expressly authorized exception to the anti-injunction statute.

Fourth, as discussed in Part IV, reliance on Younger v. Harris, supra, is a much more complicated matter than the District Court opinion would indicate.

Fifth, if the District Court believed that the availability of a state judicial remedy absolutely barred federal relief,17 it was in error. Monroe v. Pape, 1961, 365 U.S. 167, 81 S. Ct. 473, 5 L. Ed. 2d 492, is clear precedent for holding that those whose civil rights have been violated need not look first to state courts for their redress.

Because of the result we reach here, our attention will focus primarily on (i) the substantive § 1983 claim involving the First Amendment violation; and (ii) the applicability of the doctrine of equitable restraint to the unique fact situation presented here.

We begin our foray into the appellants' § 1983 claim with the observation that the right of association guaranteed by the First and Fourteenth Amendments is zealously guarded by this Nation's courts. E. g., Gibson v. Florida Legislative Comm., 1963, 372 U.S. 539, 83 S. Ct. 889, 9 L. Ed. 2d 929; NAACP v. Alabama, 1958, 357 U.S. 449, 78 S. Ct. 1163, 2 L. Ed. 2d 1488. The officers and members of the United League of Marshall County are free to enjoy that right. See id.; NAACP v. Button, 1963, 371 U.S. 415, 83 S. Ct. 328, 9 L. Ed. 2d 405; Bates v. Little Rock, 1960, 361 U.S. 516, 80 S. Ct. 412, 4 L. Ed. 2d 480. They are also beneficiaries of a right fundamental to the democratic process: to speak their minds free of unwarranted governmental restraint. See, e. g., NAACP v. Button, supra.

Equally important to the democratic process is the grand jury which serves two salient functions. First, it determines if there is probable cause to believe a crime has been committed; second, it shields citizens from arbitrary and oppressive governmental action. E. g., United States v. Briggs, 5 Cir., 1975, 514 F.2d 794, 800. The grand jury and other investigatory bodies operate on the premise that the public is entitled to every citizen's evidence unless protected by privilege. Branzburg v. Hayes, 1972, 408 U.S. 665, 688, 92 S. Ct. 2646, 2660, 33 L. Ed. 2d 626, 664; see also United States v. Bryan, 1950, 339 U.S. 323, 70 S. Ct. 724, 94 L. Ed. 884; Gibson v. Florida Legislative Comm., supra. "Because (the grand jury's) task is to inquire into the existence of possible criminal conduct and to return only well-founded indictments, its investigative powers are necessarily broad." Branzburg, supra, 408 U.S. at 688, 92 S. Ct. at 2660, 33 L.Ed.2d at 643.

The powers of a grand jury are not unlimited, however; nor are the rights to associate and speak freely. In the face of a clear collision between First Amendment freedoms and the broad powers of a grand jury, we must be careful to protect the interests underlying each.

We are not without helpful precedents. In Branzburg,18 supra, the Supreme Court held that reporters could be required to appear and testify before a state or federal grand jury without violating freedom of speech and press guarantees. Justice White detailed the interests that required balancing and came to the following carefully qualified conclusion:

On the records now before us, we perceive no basis for holding that the public interest in law enforcement and in ensuring effective grand jury proceedings is insufficient to override the consequential, but uncertain, burden on news gathering that is said to result from insisting that reporters, like other citizens, respond to relevant questions put to them in the course of a valid grand jury investigation or criminal trial.19

408 U.S. at 690-91, 92 S. Ct. at 2661, 33 L.Ed.2d at 645 (emphasis added).

Even more pertinent, however, is the Court's basis for refusing to establish a constitutional news reporter's privilege on the recognized principle that the infringement of rights protected by the First Amendment must be no broader than necessary to achieve a permissible governmental objective.20 The case before us falls squarely within the following hypothetical fact patterns not found present in Branzburg and which plainly would have produced a different result:Nothing in the record indicates that these grand juries were "prob(ing) at will and without relation to existing need." DeGregory v. Attorney General of New Hampshire, 383 U.S. 825, 829 (, 86 S. Ct. 1148, 16 L. Ed. 2d 292) (1966). Nor did the grand juries attempt to invade protected First Amendment rights by forcing wholesale disclosure of names and organizational affiliations for a purpose that was not germane to the determination of whether crime has been committed, cf. NAACP v. Alabama, 357 U.S. 449 (, 78 S. Ct. 1163, 2 L. Ed. 2d 1488) (1958); NAACP v. Button, 371 U.S. 415 (, 83 S. Ct. 328, 9 L. Ed. 2d 405) (1963); Bates v. Little Rock, 361 U.S. 516 (, 80 S. Ct. 412, 4 L. Ed. 2d 480) (1960), and the characteristic secrecy of grand jury proceedings is a further protection against the undue invasion of such rights.

408 U.S. at 700, 92 S. Ct. at 2666, 33 L.Ed.2d at 650.

Finally, we construe the following language to constitute an assurance by the Court that the First Amendment is not banished from the grand jury room:21

Finally, as we have earlier indicated, news gathering is not without its First Amendment protections, and grand jury investigations if instituted or conducted other than in good faith, would pose wholly different issues for resolution under the First Amendment.42 Official harassment of the press undertaken not for purposes of law enforcement but to disrupt a reporter's relationship with his news sources would have no justification. Grand juries are subject to judicial control and subpoenas to motions to quash. We do not expect courts will forget that grand juries must operate within the limits of the First Amendment as well as the Fifth.

42. Cf. Younger v. Harris, 401 U.S. 37, 49, 53-54, 91 S. Ct. 746, 27 L. Ed. 2d 669 (1971).

408 U.S. at 707-08, 92 S. Ct. at 2670, 33 L.Ed.2d at 655.

We therefore conclude that the First Amendment can serve as a limitation on the power of the grand jury to interfere with a witness' freedoms of association and expression.22 And that limitation is defined in terms of relevancy to the crime under investigation. When the grand jury goes on a fishing expedition in forbidden waters, the courts are not powerless to act.

Bursey v. United States, 9 Cir., 1972, 466 F.2d 1059,23 involved an appeal by two staff members of The Black Panther newspaper. The appellants had been held in contempt for refusing to answer on First and Fifth Amendment grounds certain questions propounded to them by a federal grand jury investigating Panther threats against the President's life. In its First Amendment analysis, the Court divided the unanswered questions into four categories, placed the burden on the government to establish that its interests were sufficiently legitimate and compelling to override First Amendment rights,24 and held that the government sustained that burden only with regard to questions in the first category.25 Of particular significance here is the Court's statements concerning the fourth category (source of party funding):

To require a member of an association, especially a dissident political party, to reveal the details of its funding is as effective a chilling device as is compulsory disclosure of its membership lists. . . . A response to these questions may have produced some evidence substantially connected to the compelling objects of the investigation, but it may also have produced a quantity of information that was none of the grand jury's business. When First Amendment interests are at stake, the Government must use a scalpel, not an ax. There was no justification for these questions, and the witnesses cannot be compelled to answer them.

Id. at 1088.

With these legal principles in mind, we now turn to the facts before us. A black youth had been killed in Byhalia and no one was charged with his death. The United League precisely the kind of organization whose members' rights must be protected by the First Amendment if the Bill of Rights is to mean anything organized an economic boycott of the community which was enjoined by a state court until this Court intervened.26 A pamphlet critical of District Attorney Littlejohn and the law enforcement and grand jury investigation had been circulated by the League. No one challenges the fact that it was the leaflet alone which inspired the resumption of the grand jury inquiry.27

We have no doubt that the leaflet circulated by the United League is "speech" protected by the First Amendment. Cf. New York Times Co. v. Sullivan, 1964, 376 U.S. 254, 84 S. Ct. 710, 11 L. Ed. 2d 686. Nor do we doubt that District Attorney Littlejohn and Judge Brown had not only the authority but the affirmative duty to bring before the grand jury any relevant information bearing on the Butler Young death. Moreover, we do not question the grand jury's authority to inquire as to any facts within the witness' knowledge which supported the accusations in the leaflet about the performance or non-performance of duties by governmental officials. We hold, however, that the grand jury had no right to intrude into United League matters having not the remotest relationship to that tragic event and its investigation.

At the injunction hearing before the District Court, various League officers and members testified that the grand jury inquired into the internal, structural, financial, and associational aspects of the League. While the percentage of time which, according to the witnesses, had been spent on questions relating to the League varied,28 a fair characterization of the consensus was that such percentages were substantial. Our in camera review of the grand jury proceedings persuades us that, for the most part, their time estimate testimony is borne out by the record and demonstrates positively that the grand jury invaded areas protected by the First Amendment. The District Court's findings to the contrary29 are no impediment to our conclusion, whether treated as clearly erroneous,30 mixed questions of fact and law,31 or reviewed under the broader standard sometimes employed when First Amendment freedoms are at stake.32

It would be a sorry day were we to allow a grand jury to delve into the membership, meetings, minutes, organizational structure, funding and political activities of unpopular organizations on the pretext that their members might have some information relevant to a crime. This is especially so here. League business was pursued in questioning in many instances after the witnesses had disavowed any knowledge of facts relative to Butler Young's death33 and in some of those same instances after the witness additionally disavowed any knowledge of the origin or authorization of the leaflet. We also have confirmed that certain witnesses were questioned about League affairs despite protests or queries as to their relevancy.34

Under these circumstances, we fail to see, for example, how the subject of League finances was of any legitimate concern to the grand jury.35 Absent a plausible explanation and we find the record barren of one we are forced to conclude that the questions directed to League witnesses about purely League business having no arguable or colorable relationship to the Young death were posed in bad faith for the purpose of harassing those who, in the exercise of their First Amendment rights, had criticized defendant Littlejohn and had called the grand jury proceeding a farce. This abuse of the grand jury process cannot be tolerated in a free society.

In order to preserve the secrecy of the grand jury proceedings here, we decline to detail the offending questions. Suffice it to say that questions falling within these broad categories abridged the plaintiffs-appellants' associational and free speech rights:

(i) Questions relating to the membership of the United League of Marshall County.

(ii) Questions relating to those who associate with the United League.

(iii) Questions relating to United League meetings in general, persons who attend such meetings, and the matters discussed at such meetings.

(iv) Questions relating to League financing and funding generally or financing or funding of the leaflet.

(v) Questions relating to the leaflet or any other printed or oral statement of any League member.

(vi) Questions relating to the economic boycott and protests organized by the

United League. IV. "Equitable Restraint," Starring The

As previously noted, the District Court, partially relying on Younger v. Harris, 1971, 401 U.S. 37, 91 S. Ct. 746, 27 L. Ed. 2d 669, denied injunctive relief. The Younger Sextet36 established that, absent extraordinary circumstances,37 principles of equity, comity, and federalism barred federal courts from enjoining pending state criminal prosecutions. Samuels v. Mackell, 401 U.S. 66, 91 S. Ct. 764, 27 L. Ed. 2d 688 applied like requirements to requests for declaratory relief. However, the Supreme Court reserved for another day the question whether the rule applied in the declaratory judgment context where no state prosecution was pending. Samuels v. Mackell, 401 U.S. at 73-74, 91 S.Ct. at 768, 27 L. Ed. 2d at 694.38

In 1974, the Court answered that question negatively in Steffel v. Thompson, 415 U.S. 452, 462, 94 S. Ct. 1209, 1217, 39 L. Ed. 2d 505, 516:

(T)he relevant principles of equity, comity, and federalism "have little force in the absence of a pending state proceeding." Lake Carriers' Assn. v. MacMullan, 406 U.S. 498, 509 (, 92 S. Ct. 1749, 32 L. Ed. 2d 257) (1972). When no state criminal proceeding is pending at the time the federal complaint is filed, federal intervention does not result in duplicative legal proceedings or disruption of the state criminal justice system; nor can federal intervention, in that circumstance, be interpreted as reflecting negatively upon the state court's ability to enforce constitutional principles. In addition, while a pending state prosecution provides the federal plaintiff with a concrete opportunity to vindicate his constitutional rights, a refusal on the part of the federal courts to intervene when no state proceeding is pending may place the hapless plaintiff between the Scylla of intentionally flouting state law and the Charybdis of forgoing what he believes to be constitutionally protected activity in order to avoid becoming enmeshed in a criminal proceeding. Cf. Dombrowski v. Pfister, 380 U.S. 479, 490 (, 85 S. Ct. 1116, 14 L. Ed. 2d 22) (1965).

However, the Court once again did not reach the question whether Younger principles applied where a party sought to enjoin future prosecutions. 415 U.S. at 463 & n.12, 94 S. Ct. at 1217-18 & n.12, 39 L. Ed. 2d at 517 & n.12.

A partial answer has been provided by cases decided after Steffel.39 In Doran v. Salem Inn, Inc., 422 U.S. 922, 95 S. Ct. 2561, 45 L. Ed. 2d 648, two co-plaintiffs who had not been subject to criminal prosecution sought both declaratory and injunctive relief against the enforcement of a Hempstead, New York ordinance. The Court held that the issuance of a preliminary injunction was not barred by the doctrine of equitable restraint:No state proceedings were pending against either Salem or Tim-Rob at the time the District Court issued its preliminary injunction. Nor was there any question that they satisfied the requirements for federal jurisdiction. As we have already stated, they were assuredly entitled to declaratory relief, and since we have previously recognized that "(o)rdinarily . . . the practical effect of (injunctive and declaratory) relief will be virtually identical," Samuels, 401 U.S., at 73 (, 91 S. Ct. 764), we think that Salem and Tim-Rob were entitled to have their claims for preliminary injunctive relief considered without regard to Younger 's restrictions.

422 U.S. at 930-31, 95 S. Ct. at 2567, 45 L.Ed.2d at 659.

Wooley v. Maynard, 1977, 430 U.S. 705, 97 S. Ct. 1428, 51 L. Ed. 2d 752, provides further support for the proposition that Younger principles are not automatically triggered when injunctive relief against future prosecutions is sought. In that case, one of the plaintiffs had thrice been found guilty of and served the sentence imposed for violating a New Hampshire statute forbidding the knowing obstruction of figures or letters on a license plate. Mr. and Mrs. Maynard, both Jehovah's Witnesses, claimed that the New Hampshire requirement that license plates carry the state slogan, "Live Free or Die," was violative of their First Amendment rights. They sought both declaratory and injunctive relief against future enforcement of the statute against them. Younger was held not to preclude federal injunctive relief:

It is correct that generally a court will not "enjoin the enforcement of a criminal statute even though unconstitutional." Spielman Motor Co. v. Dodge, 295 U.S. 89, 95, 55 S. Ct. 678, 79 L. Ed. 1322 (1935), since "(s)uch a result seriously impairs the state's interest in enforcing its criminal laws, and implicates the concerns for federalism which lie at the heart of Younger," Doran, supra, 422 U.S. at 931, 95 S. Ct. 2561, 45 L. Ed. 2d 648. But this is not an absolute policy and in some circumstances injunctive relief may be appropriate. "To justify such interference there must be exceptional circumstances and a clear showing that an injunction is necessary in order to afford adequate protection of constitutional rights." Spielman Motor Co., supra, 295 U.S. at 95, 55 S. Ct. 678, 79 L. Ed. 1322.

430 U.S. at 711-12, 97 S. Ct. at 1434, 51 L.Ed.2d at 760-61.40

Steffel, Doran and Maynard suggest that when there will be no interruption of ongoing state criminal proceedings, and thus no threat to proper federal-state relations, Younger does not bar federal intervention so long as the plaintiff can satisfy the requirements of federal jurisdiction, and can demonstrate (i) exceptional circumstances and (ii) that an injunction is necessary for adequate protection of constitutional rights. These cases and others41 further suggest that a blind and uncritical application of Younger would be both unwarranted and unwise when the policies underlying the equitable restraint doctrine are not disserved.

This Circuit has not in the past treated prayers for injunctive relief against state courts and officers as shibboleths to close the federal courthouse doors. Stewart v. Dameron, 5 Cir., 1971, 448 F.2d 396 and 5 Cir., 1972, 460 F.2d 278; Shaw v. Garrison, 5 Cir., 1972, 467 F.2d 113; Milner v. Burson, 5 Cir., 1972, 470 F.2d 870; Morgan v. Wofford, 5 Cir., 1973, 472 F.2d 822; Jones v. Wade, 5 Cir., 1973, 479 F.2d 1176, prior opinion reaffirmed in light of Steffel v. Thompson, 5 Cir., 1974, 504 F.2d 428; Pugh v. Rainwater, 5 Cir., 1973, 483 F.2d 778, rev'd in part on other grounds sub nom. Gerstein v. Pugh, 1975, 420 U.S. 103, 95 S. Ct. 854, 43 L. Ed. 2d 54; Leonard v. City of Columbus, 5 Cir., 1977, 551 F.2d 974, aff'd en banc, 1978, 565 F.2d 957. We decline to do so now.

First, there was no state prosecution pending against these plaintiffs when they instituted the present suit, thus making the Younger holding inapplicable. And, as far as we are aware, none has been brought since which would trigger Hicks v. Miranda, 1975, 422 U.S. 332, 95 S. Ct. 2281, 45 L. Ed. 2d 223. No one is attempting to interrupt any ongoing state criminal proceeding or to enjoin the enforcement of or declare invalid any Mississippi statute. E. g., Boyle v. Landry, note 36, supra. The grand jury investigating the Butler Young case has concluded its business and has been discharged. Furthermore, there are no ongoing state-initiated civil proceedings "in aid of and closely related to criminal statutes," and no relief from enforcement of a state court judgment is being sought, Huffman v. Pursue, Ltd., 1975, 420 U.S. 592, 604, 95 S. Ct. 1200, 1208, 43 L. Ed. 2d 482, 492. No state appellate proceedings are in progress. Gibson v. Berryhill, 1973, 411 U.S. 564, 93 S. Ct. 1689, 36 L. Ed. 2d 488. Nor are there pending any privately instituted civil contempt proceedings, Juidice v. Vail, 1977, 430 U.S. 327, 97 S. Ct. 1211, 51 L. Ed. 2d 376, 384, in which the state's contempt process is involved.⁴²

We have before us a situation which falls into the hazy, undecided interstices of Younger and Progeny and defies analysis in strict or traditional Younger terms.43 There is on file with the state court the transcript of a grand jury hearing, portions of which were extracted in bad faith doing violence to the plaintiffs' First Amendment rights. That transcript, by order of Judge Brown, a defendant-appellee here, can be made available to any state or federal officer or any subsequent grand jury. Significantly, that order does not limit availability to such state and federal officers or grand juries investigating the Butler Young incident, and we are sure Judge Brown could have imposed that limitation had he chosen to do so.44

Moreover, the report of the grand jury stands as part of its recorded proceedings. That report in effect "accuses, but furnishes no forum for a denial,"45 and suggests, through its direction that the grand jury proceedings be made available to the State Tax Commission,46 that the witnesses who testified as to the financial and funding arrangements of the League in violation of their constitutional rights were suspected of some kind of wrongful conduct. This report has already been published in the press.47

The appellants did not have to resort to a Mississippi state court to redress this unconstitutional abuse of the grand jury process. Monroe v. Pape, supra; Huffman v. Pursue, supra.48 Granting federal injunctive relief here would not reflect negatively on the ability of state courts to pass on constitutional issues, Younger, supra, nor jeopardize Mississippi's interest in the enforcement of its laws and smooth functioning of its judicial process, e. g., Maynard, supra. We are satisfied that exceptional circumstances and the necessity of federal relief have been amply demonstrated, Maynard, supra.

In sum, nothing in the Younger rules or the policies underlying them preclude injunctive relief here. See Morial v. Judiciary Commission, 5 Cir., 1977, 565 F.2d 295, 298-99; Concerned Citizens of Vicksburg v. Sills, 5 Cir., 1978, 567 F.2d 646, 650-651. There is certainly a live controversy between the parties so long as the grand jury report and transcript, replete with offending portions, remain open to inspection by federal or state officers and future grand juries. See generally Developments, note 42, at 1292-1300. And there is no assurance that retributive use will not be made of the transcript if an injunction does not issue in light of the entire history of this case.49V. To Enjoin Or Not To Enjoin

We recognize that a grant or denial of a preliminary injunction is discretionary and that the trial court can only be reversed for abuse of discretion. E. g., Doran, supra, 442 U.S. at 931-32, 95 S.Ct. at 2567, 45 L. Ed. 2d at 659-60; Buchanan v. United States Postal Service, 5 Cir., 1975, 508 F.2d 259, 266. The District Court recited the Canal Authority requirements,50 but, perhaps because it believed that no constitutional violation had occurred thus making it unlikely that the plaintiffs would prevail on the merits it held that the irreparable injury requirement had not been met.51 Our previous discussion makes clear our belief in the certainty that plaintiffs will prevail on the merits of their constitutional claim and if an injunction does not issue that they will suffer further irreparable injury in living under the fear that at any time the authorities will pursue the objectives that set all this in motion.52 As discussed earlier,53 to the extent that the District Court considered exhaustion in terms of irreparable injury, we do not agree that exhaustion was required. While the District Court did not express its views on the third and fourth requirements, the burden of this opinion leaves little, if anything, open on remand as to these issues.

Since the District Court did not have before it more recent Supreme Court pronouncements on the equitable restraint doctrine, we feel that a remand with specific instructions is unjustified. The District Court is now in a position to fashion a remedy that will best protect the plaintiffs and do the least violence to any legitimate interests the State of Mississippi might have in the event that it should reopen the Butler Young case for further investigation.

We therefore reverse and remand for proceedings not inconsistent with this opinion.

REVERSED and REMANDED.

There must be some way that this matter could have been handled in the courts of Mississippi. It should have been. The Federal Courts should have abstained.