# Lee v. Florida/Dissent Black

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* Dissenting Opinion Black
United States Supreme Court
392 U.S. 378
Lee v. Florida
Argued: May 2, 1968. --- Decided: June 17, 1968
Mr. Justice BLACK, dissenting.
In 1937, Nardone v. United States, 302 U.S. 379, 58 S.Ct. 275, 82 L.Ed. 314, held that 47 U.S.C. § 605 forbids the introduction of intercepted and divulged telephone conversations in federal courts. In Schwartz v. State of Texas, 344 U.S. 199, 73 S.Ct. 232, 97 L.Ed. 231 (1952), this Court held, however, that the section does not forbid the use of such evidence in state criminal trials, saying: '(W)e do not believe that Congress intended to impose a rule of evidence on the state courts.' 344 U.S., at 203, 73 S.Ct. at 235. I thought the holding in Schwartz was correct then and still think so. The Court holds, however, that § 605 now compels state courts to exclude such intercepted telephone messages from state trials. The effect of this holding is to overrule Schwartz v. State of Texas. The Court's holding is made despite the fact that Congress itself has not changed the section. Nor does Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961), undermine Schwartz as the Court intimates for in Schwartz we dealt, as we do here, with conduct that violates only a federal statute and so deserves only the sanctions contemplated by that statute. The Communications Act explicitly provides for penal sanctions, 47 U.S.C. § 501, and some civil remedies might be implied as a matter of federal law, cf. J. I. Case Co. v. Borak, 377 U.S. 426, 84 S.Ct. 1555, 12 L.Ed.2d 423 (1964). But the creation by statute of a federal substantive right does not mean that the States are required by the Supremacy Clause to give every procedural trial remedy afforded by federal courts or that failure to afford such remedies renders the State 'an accomplice in the willful transgression of 'the Laws of the United States." Ante, at 386.
I think it would be more appropriate for the Court to leave this job of rewriting § 605 to the Congress. Waiting for Congress to rewrite its law, however, is too slow for the Court in this day of the rapid creation of new judicial rules, many of which inevitably tend to make conviction of criminals more difficult. I cannot agree that there is the slightest justification for overruling Schwartz and would affirm these Florida gambling convictions.
Mr. Justice HARLAN, whom Mr. Justice WHITE joins, dissenting.
Congress has ample power to proscribe any particular use of intercepted telephone conversations. The question here is simply whether § 605 of the Communications Act proscribes basing state criminal convictions on such interceptions. This statutory question does not involve any constitutional exclusionary rule, cf. Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, or the supervisory power of this Court over the lower federal courts, cf. Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed.2d 652.
More than 15 years ago, in Schwartz v. State of Texas, 344 U.S. 199, 73 S.Ct. 232, 97 L.Ed. 231, this Court decided that § 605 did not render state convictions based on such interceptions invalid. Although arguments can be made that this decision was incorrect, the matter is hardly without difficulty. It is not at all obvious that a statute which by its terms prohibits only interception and divulgence of conversations, meant also to prohibit state-court reliance on the perfectly probative evidence gained thereby.
It disserves the proper relation between this Court and Congress to change the long-standing interpretation of a federal statute in the absence of much more convincing evidence than is here adduced that the Court originally mistook what Congress intended. The importance of the principle of stare decisis of course varies with the nature of the question. It is at its highest in a case such as the present: Congress has considered the wiretapping problem many times, each time against what it naturally assumed to be a stable background of statute law. To vary that background with the inclinations of members of this Court is to frustrate orderly congressional consideration of statutory problems. I would therefore adhere to Schwartz.
Since the Court does not reach petitioners' further contention that the interception violated their constitutional rights, I am content to dissent from the Court's determination of the statutory question and not to express views that would, at this stage, be academic.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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