deciding, that plaintiffs Medvin and Slovinsky have standing here.
We do decide, however, that this action is not maintainable under Rule 23 of the Federal Rules of Civil Procedure as a class action. Under Younger v. Harris, supra, the class would have to consist solely of those persons whose fear of prosecution under N.J.S. 2A:107-2 was more than imaginary or speculative. Members of the class would have to be able to claim specific present harm, or a threat of specific future harm. Such a "class" is incapable of delineation, as required by Rule 23. See 3B J. Moore Federal Practice para. 23.04. Furthermore, it will become apparent below that we are called upon to adjudge the constitutionality of the state statute only with regard to inverted United States flags, or representations thereof. The prerequisites of Rule 23(a) with regard to numerosity, commonality of issues of law and/or fact, and representativeness of claims and defenses therefore cannot be met as to the classes asserted to exist by plaintiffs in their complaint.
Having determined the issue of standing, we turn to questions of abstention arising under Younger v. Harris, supra, and Railroad Commission v. Pullman, 312 U.S. 496, 61 S. Ct. 643, 85 L. Ed. 971 (1941). Younger held "that the possible unconstitutionality of a [state] statute 'on its face' does not in itself justify an injunction against goodfaith attempts to enforce it," 401 U.S. at 54, 91 S. Ct. at 755; rather, principles of comity require that federal courts not interfere with pending state criminal prosecutions. The injury that plaintiffs face in the instant action is no different from "that incidental to every criminal proceeding brought lawfully and in good faith." 401 U.S. at 49, 91 S. Ct. at 753; Douglas v. City of Jeannette, 319 U.S. 157, 63 S. Ct. 877, 87 L. Ed. 1324 (1943). We do not find the irreparable injury to plaintiffs or the bad faith attempts of enforcement by defendants that must obtain before we may hold Younger inapplicable. 401 U.S. at 46, 53, 91 S. Ct. 746, 27 L. Ed. 2d 669. Cf. Dombrowski v. Pfister, 380 U.S. 479, 85 S. Ct. 1116, 14 L. Ed. 2d 22 (1965). Nor may we issue declaratory relief where there is a pending state prosecution. Samuels v. Mackell, 401 U.S. 66, 91 S. Ct. 764, 27 L. Ed. 2d 688 (1971).
Plaintiffs argue that Younger and the companion cases decided by the Supreme Court the same day apply only to postindictment situations. We think this argument misses the thrust of the principle of abstention promulgated in Younger. The Supreme Court discussed in considerable detail the "long standing public policy against federal court interference with state court proceedings." 401 U.S. at 43-54, 91 S. Ct. at 750. In this circuit, Lewis v. Kugler, 446 F.2d 1343, 1348 (3d Cir. 1971) held Younger to bar declaratory judgment as to "searches and seizures forming the bases of the state criminal proceedings pending . . .", and Burak v. Pennsylvania, 339 F. Supp. 534, 536 (E.D.Pa.1972) (three-judge court) held that a prosecution commenced by a criminal complaint, rather than by indictment, also fell within the confines of Younger. As the court in Burak stated:
"We do not find it likely, in view of the disparity involved in state criminal prosecutions, that the Supreme Court meant to enunciate a rigid rule concerning the commencement of state criminal prosecutions."