(Slip Opinion)              OCTOBER TERM, 2009                                       1

                                       Syllabus

         NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
       being done in connection with this case, at the time the opinion is issued.
       The syllabus constitutes no part of the opinion of the Court but has been
       prepared by the Reporter of Decisions for the convenience of the reader.
       See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

                                       Syllabus

    MILAVETZ, GALLOP & MILAVETZ, P. A., ET AL. v.

                 UNITED STATES

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
                 THE EIGHTH CIRCUIT

   No. 08-1119. Argued December 1, 2009 - Decided March 8, 2010*
The Bankruptcy Abuse Prevention and Consumer Protection Act of
  2005 (BAPCPA) amended the Bankruptcy Code to define a class of
  bankruptcy professionals termed "debt relief agenc[ies]." 11 U. S. C.
  §101(12A). That class includes, with limited exceptions, "any person
  who provides any bankruptcy assistance to an assisted person . . . for
  . . . payment . . . , or who is a bankruptcy petition preparer." Ibid.
  The BAPCPA prohibits such professionals from "advis[ing] an as
  sisted person . . . to incur more debt in contemplation of [filing for
  bankruptcy] . . . ." §526(a)(4). It also requires them to disclose in
  their advertisements for certain services that the services are with
  respect to or may involve bankruptcy relief, §§528(a)(3), (b)(2)(A), and
  to identify themselves as debt relief agencies, §§528(a)(4), (b)(2)(B).
      The plaintiffs in this litigation - a law firm and others (collectively
  Milavetz) - filed a preenforcement suit seeking declaratory relief, ar
  guing that Milavetz is not bound by the BAPCPA's debt-relief-agency
  provisions and therefore can freely advise clients to incur additional
  debt and need not make the requisite disclosures in its advertise
  ments. The District Court found that "debt relief agency" does not
  include attorneys and that §§526 and 528 are unconstitutional as ap
  plied to that class of professionals. The Eighth Circuit affirmed in
  part and reversed in part, rejecting the District Court's conclusion
  that attorneys are not "debt relief agenc[ies]"; upholding application
  of §528's disclosure requirements to attorneys; and finding §526(a)(4)
  unconstitutional because it broadly prohibits debt relief agencies
 -  -  -  -  -  -
  * Together with No. 08-1225, United States v. Milavetz, Gallop & Mi
lavetz, P. A., et al., also on certiorari to the same court.
2        MILAVETZ, GALLOP & MILAVETZ, P. A. v. UNITED

                          STATES

                          Syllabus

    from advising assisted persons to incur any additional debt in con
    templation of bankruptcy even when the advice constitutes prudent
    prebankruptcy planning.
Held:
    1. Attorneys who provide bankruptcy assistance to assisted persons
 are debt relief agencies under the BAPCPA. By definition, "bank
 ruptcy assistance" includes several services commonly performed by
 attorneys, e.g., providing "advice, counsel, [or] document prepara
 tion," §101(4A). Moreover, in enumerating specific exceptions to the
 debt-relief-agency definition, Congress indicated no intent to exclude
 attorneys. See §§101(12A)(A)-(E). Milavetz relies on the fact that
 §101(12A) does not expressly include attorneys in advocating a nar
 rower understanding. On that reading, only a bankruptcy petition
 preparer would qualify - an implausibility given that a "debt relief
 agency" is "any person who provides any bankruptcy assistance . . . or
 who is a bankruptcy petition preparer," ibid. Milavetz's other argu
 ments for excluding attorneys are also unpersuasive. Pp. 5-9.
    2. Section 526(a)(4) prohibits a debt relief agency only from advis
 ing a debtor to incur more debt because the debtor is filing for bank
 ruptcy, rather than for a valid purpose. The statute's language, to
 gether with its purpose, makes a narrow reading of §526(a)(4) the
 natural one. Conrad, Rubin & Lesser v. Pender, 289 U. S. 472, sup
 ports this conclusion. The Court in that case read now-repealed
 §96(d), which authorized reexamination of a debtor's attorney's fees
 payment "in contemplation of the filing of a petition," to require that
 the portended bankruptcy have "induce[d]" the transfer at issue, id.,
 at 477, understanding inducement to engender suspicion of abuse.
 The Court identified the "controlling question" as "whether the
 thought of bankruptcy was the impelling cause of the transaction,"
 ibid.    Given the substantial similarities between §§96(d) and
 526(a)(4), the controlling question under the latter is likewise
 whether the impelling reason for "advis[ing] an assisted person . . . to
 incur more debt" was the prospect of filing for bankruptcy. In prac
 tice, advice impelled by the prospect of filing will generally consist of
 advice to "load up" on debt with the expectation of obtaining its dis
 charge.     The statutory context supports the conclusion that
 §526(a)(4)'s prohibition primarily targets this type of conduct. The
 Court rejects Milavetz's arguments for a more expansive view of
 §526(a)(4) and its claim that the provision, narrowly construed, is
 impermissibly vague. Pp. 9-18.
    3. Section 528's disclosure requirements are valid as applied to Mi
 lavetz. Consistent with Milavetz's characterization, the Court pre
 sumes that this is an as-applied challenge. Because §528 is directed
 at misleading commercial speech and imposes only a disclosure re
                     Cite as: 559 U. S. ____ (2010)                    3

                                Syllabus

  quirement rather than an affirmative limitation on speech, the less
  exacting scrutiny set out in Zauderer v. Office of Disciplinary Counsel
  of Supreme Court of Ohio, 471 U. S. 626, governs. There, the Court
  found that, while unjustified or unduly burdensome disclosure re
  quirements offend the First Amendment, "an advertiser's rights are
  adequately protected as long as disclosure requirements are reasona
  bly related to the State's interest in preventing deception of consum
  ers." Id., at 651. Section 528's requirements share the essential fea
  tures of the rule challenged in Zauderer. The disclosures are
  intended to combat the problem of inherently misleading commercial
  advertisements, and they entail only an accurate statement of the
  advertiser's legal status and the character of the assistance provided.
  Moreover, they do not prevent debt relief agencies from conveying
  any additional information through their advertisements. In re R. M.
  J., 455 U. S. 191, distinguished. Because §528's requirements are
  "reasonably related" to the Government's interest in preventing con
  sumer deception, the Court upholds those provisions as applied to Mi
  lavetz. Pp. 18-23.
541 F. 3d 785, affirmed in part, reversed in part, and remanded.

   SOTOMAYOR, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and STEVENS, KENNEDY, GINSBURG, BREYER, and ALITO, JJ.,
joined, in which SCALIA, J., joined except for n. 3, and in which THOMAS,
J., joined except for Part III-C. SCALIA, J., and THOMAS, J., filed opin
ions concurring in part and concurring in the judgment.
                        Cite as: 559 U. S. ____ (2010)                              1

                             Opinion of the Court

     NOTICE: This opinion is subject to formal revision before publication in the
     preliminary print of the United States Reports. Readers are requested to
     notify the Reporter of Decisions, Supreme Court of the United States, Wash
     ington, D. C. 20543, of any typographical or other formal errors, in order
     that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES
                                   _________________

                         Nos. 08-1119 and 08-1225
                                   _________________

   MILAVETZ, GALLOP & MILAVETZ, P. A., ET AL.,
                PETITIONERS
08-1119              v.
               UNITED STATES

          UNITED STATES, PETITIONER
08-1225               v.
    MILAVETZ, GALLOP & MILAVETZ, P. A., ET AL.
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
           APPEALS FOR THE EIGHTH CIRCUIT
                                 [March 8, 2010]

  JUSTICE SOTOMAYOR delivered the opinion of the Court.
  Congress enacted the Bankruptcy Abuse Prevention and
Consumer Protection Act of 2005 (BAPCPA or Act) to
correct perceived abuses of the bankruptcy system.
Among the reform measures the Act implemented are a
number of provisions that regulate the conduct of "debt
relief agenc[ies]" - i.e., professionals who provide bank
ruptcy assistance to consumer debtors. See 11 U. S. C.
§§101(3), (12A). These consolidated cases present the
threshold question whether attorneys are debt relief agen
cies when they provide qualifying services. Because we
agree with the Court of Appeals that they are, we must
also consider whether the Act's provisions governing debt
relief agencies' advice to clients, §526(a)(4), and requiring
them to make certain disclosures in their advertisements,
2       MILAVETZ, GALLOP & MILAVETZ, P. A. v. UNITED

                          STATES

                     Opinion of the Court

§§528(a) and (b)(2), violate the First Amendment rights of
attorneys. Concluding that the Court of Appeals con
strued §526(a)(4) too expansively, we reverse its judgment
that the provision is unconstitutionally overbroad. Like
the Court of Appeals, we uphold §528's disclosure re
quirements as applied in these consolidated cases.
                              I
   In order to improve bankruptcy law and practice, Con
gress enacted through the BAPCPA a number of provi
sions directed at the conduct of bankruptcy professionals.
Some of these measures apply to the broad class of bank
ruptcy professionals termed "debt relief agenc[ies]." That
category includes, with limited exceptions, "any person
who provides any bankruptcy assistance to an assisted
person in return for . . . payment . . . , or who is a bank
ruptcy petition preparer." §101(12A).1 "Bankruptcy assis
tance" refers to goods or services "provided to an assisted
person with the express or implied purpose of providing
information, advice, counsel, document preparation, or
filing, or attendance at a creditors' meeting or appearing
in a case or proceeding on behalf of another or providing
legal representation with respect to a case or proceeding"
in bankruptcy. §101(4A). An "assisted person" is someone
with limited nonexempt property whose debts consist
primarily of consumer debts. §101(3). The BAPCPA
subjects debt relief agencies to a number of restrictions
and requirements, as set forth in §§526, 527, and 528. As
 -  -  -  -  -  -
   1 Congress excluded from the definition of "debt relief agency" any

"officer, director, employee, or agent of a person who provides [bank
ruptcy] assistance"; any "nonprofit organization that is exempt from
taxation under section 501(c)(3) of the Internal Revenue Code of 1986";
"a creditor of [an] assisted person" who is helping that person "to
restructure any debt owed . . . to the creditor"; "a depository institu
tion"; or "an author, publisher, distributor, or seller of works subject to
copyright protection under title 17, when acting in such capacity."
§§101(12A)(A)-(E).
                 Cite as: 559 U. S. ____ (2010)            3

                     Opinion of the Court

relevant here, §526(a) establishes several rules of profes
sional conduct for persons qualifying as debt relief agen
cies. Among them, §526(a)(4) states that a debt relief
agency shall not "advise an assisted person . . . to incur
more debt in contemplation of such person filing a case
under this title or to pay an attorney or bankruptcy peti
tion preparer fee or charge for services performed as part
of preparing for or representing a debtor in a case under
this title."
   Section 528 requires qualifying professionals to include
certain disclosures in their advertisements. Subsection (a)
provides that debt relief agencies must "clearly and con
spicuously disclose in any advertisement of bankruptcy
assistance services or of the benefits of bankruptcy di
rected to the general public . . . that the services or bene
fits are with respect to bankruptcy relief under this title."
§528(a)(3). It also requires them to include the following,
"or a substantially similar statement": "We are a debt
relief agency. We help people file for bankruptcy relief
under the Bankruptcy Code." §528(a)(4). Subsection (b)
requires essentially the same disclosures in advertise
ments "indicating that the debt relief agency provides
assistance with respect to credit defaults, mortgage fore
closures, eviction proceedings, excessive debt, debt collec
tion pressure, or inability to pay any consumer debt."
§528(b)(2). Debt relief agencies advertising such services
must disclose "that the assistance may involve bankruptcy
relief," §528(b)(2)(A), and must identify themselves as
"debt relief agenc[ies]" as required by §528(a)(4), see
§528(b)(2)(B).
                              II
  The plaintiffs in this litigation - the law firm Milavetz,
Gallop & Milavetz, P. A.; the firm's president, Robert J.
Milavetz; a bankruptcy attorney at the firm, Barbara
Nilva Nevin; and two of the firm's clients (collectively
4      MILAVETZ, GALLOP & MILAVETZ, P. A. v. UNITED

                         STATES

                    Opinion of the Court

Milavetz) - filed a preenforcement suit in Federal District
Court seeking declaratory relief with respect to the Act's
debt-relief-agency provisions. Milavetz asked the court to
hold that it is not bound by these provisions and thus may
freely advise clients to incur additional debt and need not
identify itself as a debt relief agency in its advertisements.
   Milavetz first argued that attorneys are not "debt relief
agenc[ies]" as that term is used in the BAPCPA. In the
alternative, Milavetz sought a judgment that §§526(a)(4)
and 528(a)(4) and (b)(2) are unconstitutional as applied to
attorneys. The District Court agreed with Milavetz that
the term "debt relief agency" does not include attorneys,
App. to Pet. for Cert. in No. 08-1119, p. A-15, but only
after finding that §§526 and 528 - provisions expressly
applicable only to debt relief agencies - are unconstitu
tional as applied to this class of professionals.
   The Court of Appeals for the Eighth Circuit affirmed in
part and reversed in part. 541 F. 3d 785 (2008). Relying
on the Act's plain language, the court unanimously re
jected the District Court's conclusion that attorneys are
not "debt relief agenc[ies]" within the meaning of the Act.
The Court of Appeals also parted ways with the District
Court concerning the constitutionality of §528. Conclud
ing that the disclosures are intended to prevent consumer
deception and are "reasonably related" to that interest, the
court upheld the application of §528's disclosure require
ments to attorneys. Id., at 796-797 (citing Zauderer v.
Office of Disciplinary Counsel of Supreme Court of Ohio,
471 U. S. 626, 651 (1985)).
   A majority of the Eighth Circuit panel, however, agreed
with the District Court that §526(a)(4) is invalid. Deter
mining that §526(a)(4) "broadly prohibits a debt relief
agency from advising an assisted person . . . to incur any
additional debt when the assisted person is contemplating
bankruptcy," even when that advice constitutes prudent
prebankruptcy planning not intended to abuse the bank
                    Cite as: 559 U. S. ____ (2010)                 5

                        Opinion of the Court

ruptcy laws, 541 F. 3d, at 793, the majority held that
§526(a)(4) could not withstand either strict or intermedi
ate scrutiny. In dissent, Judge Colloton argued that
§526(a)(4) should be read narrowly to prevent only advice
to abuse the bankruptcy system, noting that this construc
tion would avoid most constitutional difficulties. See id.,
at 799 (opinion concurring in part and dissenting in part).
   In light of a conflict among the Courts of Appeals,2 we
granted certiorari to resolve the question of §526(a)(4)'s
scope. 556 U. S. ___ (2009). We also agreed to consider
the threshold question whether attorneys who provide
bankruptcy assistance to assisted persons are "debt relief
agenc[ies]" within the meaning of §101(12A) and the re
lated question whether §528's disclosure requirements are
constitutional.
                            III

                             A

  We first consider whether the term "debt relief agency"
includes attorneys. If it does not, we need not reach the
other questions presented, as §§526 and 528 govern only
the conduct of debt relief agencies, and Milavetz chal
lenges the validity of those provisions based on their
application to attorneys. The Government contends that
"debt relief agency" plainly includes attorneys, while
Milavetz urges that it does not. We conclude that the
Government has the better view.
  As already noted, a debt relief agency is "any person
who provides any bankruptcy assistance to an assisted
person" in return for payment. §101(12A). By definition,
"bankruptcy assistance" includes several services com
 -  -  -  -  -  -
  2 Compare 541 F. 3d 785, 794 (CA8 2008) (case below), with Hersh v.

United States ex rel. Mukasey, 553 F. 3d 743, 761, 764 (CA5 2008)
(holding that §526(a)(4) can be narrowly construed to prohibit only
advice to abuse or manipulate the bankruptcy system and that, so
construed, it is constitutional).
6       MILAVETZ, GALLOP & MILAVETZ, P. A. v. UNITED

                          STATES

                     Opinion of the Court

monly performed by attorneys. Indeed, some forms of
bankruptcy assistance, including the "provi[sion of] legal
representation with respect to a case or proceeding,"
§101(4A), may be provided only by attorneys.             See
§110(e)(2) (prohibiting bankruptcy petition preparers from
providing legal advice). Moreover, in enumerating specific
exceptions to the definition of debt relief agency, Congress
gave no indication that it intended to exclude attorneys.
See §§101(12A)(A)-(E). Thus, as the Government con
tends, the statutory text clearly indicates that attorneys
are debt relief agencies when they provide qualifying
services to assisted persons.3
  In advocating a narrower understanding of that term,
Milavetz relies heavily on the fact that §101(12A) does not
expressly include attorneys. That omission stands in
contrast, it argues, to the provision's explicit inclusion of
"bankruptcy petition preparer[s]" - a category of profes
sionals that excludes attorneys and their staff, see
§110(a)(1). But Milavetz does not contend, nor could it
credibly, that only professionals expressly included in the
definition are debt relief agencies. On that reading, no
professional other than a bankruptcy petition preparer
would qualify - an implausible reading given that the
statute defines "debt relief agency" as "any person who
 -  -  -  -  -  -
   3 Although reliance on legislative history is unnecessary in light of

the statute's unambiguous language, we note the support that record
provides for the Government's reading. Statements in a Report of the
House Committee on the Judiciary regarding the Act's purpose indicate
concern with abusive practices undertaken by attorneys as well as
other bankruptcy professionals. See, e.g., H. R. Rep. No. 109-31, pt. 1,
p. 5 (2005) (hereinafter H. R. Rep.). And the legislative record else
where documents misconduct by attorneys. See, e.g., Hearing on H. R.
3150 before the Subcommittee on Commercial and Administrative Law
of the House Committee on the Judiciary, 105th Cong., 2d Sess., pt. III,
p. 95 (1998) (hereinafter 1998 Hearings). (While the 1998 Hearings
preceded the BAPCPA's enactment by several years, they form part of
the record cited by the 2005 House Report. See H. R. Rep., at 7.)
                  Cite as: 559 U. S. ____ (2010)            7

                      Opinion of the Court

provides any bankruptcy assistance to an assisted person
. . . or who is a bankruptcy petition preparer." §101(12A)
(emphasis added). The provision's silence regarding at
torneys thus avails Milavetz little. Cf. Heintz v. Jenkins,
514 U. S. 291, 294 (1995) (holding that "debt collector" as
used in the Fair Debt Collection Practices Act, 15 U. S. C.
§1692a(6), includes attorneys notwithstanding the defini
tion's lack of an express reference to lawyers or litigation).
    Milavetz's other arguments for excluding attorneys
similarly fail to persuade us to disregard the statute's
plain language.       Milavetz contends that 11 U. S. C.
§526(d)(2)'s instruction that §§526, 527, and 528 should
not "be deemed to limit or curtail" States' authority to
"determine and enforce qualifications for the practice of
law" counsels against reading "debt relief agency" to in
clude attorneys, as the surest way to protect the States'
role in regulating the legal profession is to make the
BAPCPA's professional conduct rules inapplicable to
lawyers. We find that §526(d)(2) supports the opposite
conclusion, as Congress would have had no reason to enact
that provision if the debt-relief-agency provisions did not
apply to attorneys. Milavetz's broader claim that reading
§101(12A) to include attorneys impermissibly trenches on
an area of traditional state regulation also lacks merit.
Congress and the bankruptcy courts have long overseen
aspects of attorney conduct in this area of substantial
federal concern. See, e.g., Conrad, Rubin & Lesser v.
Pender, 289 U. S. 472, 477-479 (1933) (finding broad
authorization in former §96(d) (1934 ed.) (repealed 1978)
for courts to examine the reasonableness of a debtor's
prepetition attorney's fees).
    Milavetz next argues that §101(12A)'s exception for any
"officer, director, employee, or agent of a person who pro
vides" bankruptcy assistance is revealing for its failure to
include "partners." §101(12A)(A). In light of that omis
sion, it contends, treating attorneys as debt relief agencies
8       MILAVETZ, GALLOP & MILAVETZ, P. A. v. UNITED

                          STATES

                     Opinion of the Court

will obligate entire law firms to comply with §§526, 527,
and 528 based on the conduct of a single partner, while
the agents and employees of debt relief agencies not typi
cally organized as partnerships are shielded from those
requirements. Given that the partnership structure is not
unique to law firms, however, it is unclear why the exclu
sion would be revealing of Congress' intent only with
respect to attorneys. In any event, partnerships are them
selves "person[s]" under the BAPCPA, see §101(41), and
can qualify as "debt relief agenc[ies]" when they meet the
criteria set forth in §101(12A). Moreover, a partnership's
employees and agents are exempted from §101(12A) in the
same way as the employees and agents of other organiza
tions. To the extent that partners may be subject to the
debt-relief-agency provisions by association, that result is
consistent with the joint responsibilities that typically flow
from the partnership structure, cf. Strang v. Bradner, 114
U. S. 555, 561 (1885). Accordingly, we decline to attribute
the significance Milavetz suggests to §101(12A)(A)'s fail
ure to include partners among the exempted actors.4
   All else failing, Milavetz urges that the canon of consti
tutional avoidance requires us to read "debt relief agency"
 -  -  -  -  -  -
  4 Reviving an argument that Milavetz abandoned, amici contend that

§527(b) undermines the Government's reading of §101(12A) because it
requires a debt relief agency to inform an assisted person of his right to
hire an attorney, and it would be nonsensical to require attorneys to
provide such notice. See Brief for National Association of Consumer
Bankruptcy Attorneys et al. as Amici Curiae 34. This argument fails
on its own terms. Even if §101(12A) excluded attorneys, as Milavetz
contends, §527(b) would still produce the result of which its amici
complain, as that provision also requires a debt relief agency to inform
assisted persons that they " 'can get help in some localities from a
bankruptcy petition preparer,' " and there is no question that bank
ruptcy petition preparers are debt relief agencies and thus subject to
that requirement. It is in any event not absurd to require debt relief
agencies - whether attorneys or bankruptcy petition preparers - to
inform prospective clients of their options for obtaining bankruptcy
assistance services.
                 Cite as: 559 U. S. ____ (2010)            9

                     Opinion of the Court

to exclude attorneys in order to forestall serious doubts as
to the validity of §§526 and 528. The avoidance canon,
however, "is a tool for choosing between competing plausi
ble interpretations of a statutory text." Clark v. Martinez,
543 U. S. 371, 381 (2005). In applying that tool, we will
consider only those constructions of a statute that are
" 'fairly possible.' " United States v. Security Industrial
Bank, 459 U. S. 70, 78 (1982). For the reasons already
discussed, the text and statutory context of §101(12A)
foreclose a reading of "debt relief agency" that excludes
attorneys. Accordingly, we hold that attorneys who pro
vide bankruptcy assistance to assisted persons are debt
relief agencies within the meaning of the BAPCPA.
                              B
   Having concluded that attorneys are debt relief agencies
when they provide qualifying services, we next address the
scope and validity of §526(a)(4). Characterizing the stat
ute as a broad, content-based restriction on attorney-client
communications that is not adequately tailored to con
strain only speech the Government has a substantial
interest in restricting, the Eighth Circuit found the rule
substantially overbroad. 541 F. 3d, at 793-794, and n. 10.
For the reasons that follow, we reject that conclusion.
   Section 526(a)(4) prohibits a debt relief agency from
"advis[ing] an assisted person" either "to incur more debt
in contemplation of" filing for bankruptcy "or to pay an
attorney or bankruptcy petition preparer fee or charge for
services" performed in preparation for filing. Only the
first of these prohibitions is at issue. In debating the
correctness of the Court of Appeals' decision, the parties
first dispute the provision's scope. The Court of Appeals
concluded that Ҥ526(a)(4) broadly prohibits a debt relief
agency from advising an assisted person . . . to incur any
additional debt when the assisted person is contemplating
bankruptcy." Id., at 793. Under that reading, an attorney
10     MILAVETZ, GALLOP & MILAVETZ, P. A. v. UNITED

                         STATES

                    Opinion of the Court

is prohibited from providing all manner of "beneficial
advice - even if the advice could help the assisted person
avoid filing for bankruptcy altogether." Ibid.
   Agreeing with the Court of Appeals, Milavetz contends
that §526(a)(4) prohibits a debt relief agency from advising
a client to incur any new debt while considering whether
to file for bankruptcy. Construing the provision more
broadly still, Milavetz contends that §526(a)(4) forbids not
only affirmative advice but also any discussion of the
advantages, disadvantages, or legality of incurring more
debt. Like the panel majority's, Milavetz's reading rests
primarily on its view that the ordinary meaning of the
phrase "in contemplation of" bankruptcy encompasses any
advice given to a debtor with the awareness that he might
soon file for bankruptcy, even if the advice seeks to obviate
the need to file. Milavetz also maintains that if §526(a)(4)
were construed more narrowly, as urged by the Govern
ment and the dissent below, it would be so vague as to
inevitably chill some protected speech.
   The Government continues to advocate a narrower
construction of the statute, urging that Milavetz's reading
is untenable and that its vagueness concerns are mis
placed. The Government contends that §526(a)(4)'s re
striction on advice to incur more debt "in contemplation of"
bankruptcy is most naturally read to forbid only advice to
undertake actions to abuse the bankruptcy system. Focus
ing first on the provision's text, the Government points to
sources indicating that the phrase "in contemplation of"
bankruptcy has long been, and continues to be, associated
with abusive conduct. For instance, Black's Law Diction
ary 336 (8th ed. 2004) (hereinafter Black's) defines "con
templation of bankruptcy" as "[t]he thought of declaring
bankruptcy because of the inability to continue current
financial operations, often coupled with action designed to
thwart the distribution of assets in a bankruptcy proceed
ing." Use of the phrase by Members of Congress illus
                  Cite as: 559 U. S. ____ (2010)            11

                      Opinion of the Court

trates that traditional coupling. See, e.g., S. Rep. No. 98-
65, p. 9 (1983) (discussing the practice of " 'loading up' [on
debt] in contemplation of bankruptcy"); Report of the
Commission on the Bankruptcy Laws of the United States,
H. R. Doc. No. 93-137, pt. I, p. 11 (1973) ("[T]he most
serious abuse of consumer bankruptcy is the number of
instances in which individuals have purchased a sizable
quantity of goods and services on credit on the eve of
bankruptcy in contemplation of obtaining a discharge").
The Government also points to early American and Eng
lish judicial decisions to corroborate its contention that "in
contemplation of" bankruptcy signifies abusive conduct.
See, e.g., In re Pearce, 19 F. Cas. 50, 53 (No. 10,873) (D. Vt.
1843); Morgan v. Brundrett, 5 B. Ad. 288, 296-297, 110
Eng. Rep. 798, 801 (K. B. 1833) (Parke, J.).
   To bolster its textual claim, the Government relies on
§526(a)(4)'s immediate context. According to the Govern
ment, the other three subsections of §526(a) are designed
to protect debtors from abusive practices by debt relief
agencies: §526(a)(1) requires debt relief agencies to per
form all promised services; §526(a)(2) prohibits them from
making or advising debtors to make false or misleading
statements in bankruptcy; and §526(a)(3) prohibits them
from misleading debtors regarding the costs or benefits of
bankruptcy. When §526(a)(4) is read in context of these
debtor-protective provisions, the Government argues,
construing it to prevent debt relief agencies from giving
advice that is beneficial to both debtors and their creditors
seems particularly nonsensical.
   Finally, the Government contends that the BAPCPA's
remedies for violations of §526(a)(4) similarly corroborate
its narrow reading. Section 526(c) provides remedies for a
debt relief agency's violation of §526, §527, or §528.
Among the actions authorized, a debtor may sue the at
torney for remittal of fees, actual damages, and reasonable
attorney's fees and costs; a state attorney general may sue
12    MILAVETZ, GALLOP & MILAVETZ, P. A. v. UNITED

                        STATES

                   Opinion of the Court

for a resident's actual damages; and a court finding inten
tional abuse may impose an appropriate civil penalty.
§526(c). The Government also relies on the Fifth Circuit's
decision in Hersh v. United States ex rel. Mukasey, 553
F. 3d 743 (2008), and Judge Colloton's dissent below for
the observation that "Congress's emphasis on actual dam
ages for violations of section 526(a)(4) strongly suggests
that Congress viewed that section as aimed at advice to
debtors which if followed would have a significant risk of
harming the debtor." Id., at 760; see 541 F. 3d, at 800
(opinion concurring in part and dissenting in part). By
contrast, "legal and appropriate advice that would be
protected by the First Amendment, yet prohibited by a
broad reading of §526(a)(4), should cause no damage at
all." Ibid.; see Hersh, 541 F. 3d, at 760.
   Milavetz contends that the Government's sources actu
ally undermine its claim that the phrase "in contemplation
of" bankruptcy necessarily refers to abusive conduct.
Specifically, Milavetz argues that these authorities illus
trate that "in contemplation of" bankruptcy is a neutral
phrase that only implies abusive conduct when attached to
an additional, proscriptive term. As Black's states, the
phrase is "often coupled with action designed to thwart the
distribution of assets" in bankruptcy, Black's 336 (empha
sis added), but it carries no independent connotation of
abuse. In support of that conclusion, Milavetz relies on
our decision in Pender, 289 U. S. 472, contending that we
construed "in contemplation of" bankruptcy in that case to
describe "conduct with a view to a probable bankruptcy
filing and nothing more." Brief for Milavetz 61.
   After reviewing these competing claims, we are per
suaded that a narrower reading of §526(a)(4) is sounder,
although we do not adopt precisely the view the Govern
ment advocates. The Government's sources show that the
phrase "in contemplation of" bankruptcy has so commonly
been associated with abusive conduct that it may readily
                 Cite as: 559 U. S. ____ (2010)           13

                     Opinion of the Court

be understood to prefigure abuse. As used in §526(a)(4),
however, we think the phrase refers to a specific type of
misconduct designed to manipulate the protections of the
bankruptcy system. In light of our decision in Pender, and
in context of other sections of the Code, we conclude that
§526(a)(4) prohibits a debt relief agency only from advising
a debtor to incur more debt because the debtor is filing for
bankruptcy, rather than for a valid purpose.
    Pender addressed the meaning of former §96(d), which
authorized reexamination of a debtor's payment of attor
ney's fees "in contemplation of the filing of a petition."
Recognizing " 'the temptation of a failing debtor to deal too
liberally with his property in enabling counsel to protect
him,' " 289 U. S., at 478 (quoting In re Wood & Henderson,
210 U. S. 246, 253 (1908)), we read "in contemplation of
. . . filing" in that context to require that the portended
bankruptcy have "induce[d]" the transfer at issue, 289
U. S., at 477, understanding inducement to engender
suspicion of abuse. In so construing the statute, we identi
fied the "controlling question" as "whether the thought of
bankruptcy was the impelling cause of the transaction."
Ibid. Given the substantial similarities between §§96(d)
and 526(a)(4), we think the controlling question under the
latter provision is likewise whether the impelling reason
for "advis[ing] an assisted person . . . to incur more debt"
was the prospect of filing for bankruptcy.
    To be sure, there are relevant differences between the
provision at issue in Pender and the one now under re
view. Most notably, the inquiry in Pender was as to pay
ments made on the eve of bankruptcy, whereas §526(a)(4)
regards advice to incur additional debts. Consistent with
that difference, under §96(d) a finding that a payment was
made "in contemplation of" filing resolved only a threshold
inquiry triggering further review of the reasonableness of
the payment; the finding thus supported an inference of
abuse but did not conclusively establish it. By contrast,
14    MILAVETZ, GALLOP & MILAVETZ, P. A. v. UNITED

                        STATES

                   Opinion of the Court

advice to incur more debt because of bankruptcy, as pro
hibited by §526(a)(4), will generally consist of advice to
"load up" on debt with the expectation of obtaining its
discharge - i.e., conduct that is abusive per se.
   The statutory context supports the conclusion that
§526(a)(4)'s prohibition primarily targets this type of
abuse. Code provisions predating the BAPCPA already
sought to prevent the practice of loading up on debt prior
to filing. Section 523(a)(2), for instance, addressed the
attendant risk of manipulation by preventing the dis
charge of debts obtained by false pretenses and making
debts for purchases of luxury goods or services presump
tively nondischargeable. See §§523(a)(2)(A) and (C) (2000
ed.). The BAPCPA increased the risk of such abuse, how
ever, by providing a new mechanism for determining a
debtor's ability to repay. Pursuant to the "means tes[t],"
§707(b)(2)(D) (2006 ed.), a debtor's petition for Chapter 7
relief is presumed abusive (and may therefore be dis
missed or converted to a structured repayment plan under
Chapter 13) if the debtor's current monthly income ex
ceeds his statutorily allowed expenses, including pay
ments for secured debt, by more than a prescribed
amount. See §§707(b)(2)(A)(i)-(iv). The test promotes
debtor accountability but also enhances incentives to incur
additional debt prior to filing, as payments on secured
debts offset a debtor's monthly income under the formula.
Other amendments effected by the BAPCPA reflect a
concern with this practice.        For instance, Congress
amended §523(a)(2) to expand the exceptions to discharge
by lowering the threshold amount of new debt a debtor
must assume to trigger the presumption of abuse under
§523(a)(2)(C), and it extended the relevant prefiling win
dow. See §310, 119 Stat. 84. In context, §526(a)(4) is best
understood to provide an additional safeguard against the
practice of loading up on debt prior to filing.
   The Government's contextual arguments provide addi
                 Cite as: 559 U. S. ____ (2010)          15

                     Opinion of the Court

tional support for the view that §526(a)(4) was meant to
prevent this type of conduct. The companion rules of
professional conduct in §§526(a)(1)-(3) and the remedies
for their violation in §526(c) indicate that Congress was
concerned with actions that threaten to harm debtors or
creditors. Unlike the reasonable financial advice the
Eighth Circuit's broad reading would proscribe, advice to
incur more debt because of bankruptcy presents a sub
stantial risk of injury to both debtors and creditors. See
Hersh, 553 F. 3d, at 760-761. Specifically, the incurrence
of such debt stands to harm a debtor if his prepetition
conduct leads a court to hold his debts nondischargable,
see §523(a)(2), convert his case to another chapter, or
dismiss it altogether, see §707(b), thereby defeating his
effort to obtain bankruptcy relief. If a debt, although
manipulatively incurred, is not timely identified as abu
sive and therefore is discharged, creditors will suffer harm
as a result of the discharge and the consequent dilution of
the bankruptcy estate. By contrast, the prudent advice
that the Eighth Circuit's view of the statute forbids would
likely benefit both debtors and creditors and at the very
least should cause no harm. See id., at 760; 541 F. 3d, at
800 (Colloton, J., concurring in part and dissenting in
part). For all of these reasons, we conclude that §526(a)(4)
prohibits a debt relief agency only from advising an as
sisted person to incur more debt when the impelling rea
son for the advice is the anticipation of bankruptcy.
   That "[n]o other solution yields as sensible a" result
further persuades us of the correctness of this narrow
reading. United States v. Granderson, 511 U. S. 39, 55
(1994). It would make scant sense to prevent attorneys
and other debt relief agencies from advising individuals
thinking of filing for bankruptcy about options that would
be beneficial to both those individuals and their creditors.
That construction serves none of the purposes of the Bank
ruptcy Code or the amendments enacted through the
16      MILAVETZ, GALLOP & MILAVETZ, P. A. v. UNITED

                          STATES

                     Opinion of the Court

BAPCPA. Milavetz itself acknowledges that its expansive
view of §526(a)(4) would produce absurd results; that is
one of its bases for arguing that "debt relief agency" should
be construed to exclude attorneys. Because the language
and context of §526(a)(4) evidence a more targeted pur
pose, we can avoid the absurdity of which Milavetz com
plains without reaching the result it advocates.
   For the same reason, we reject Milavetz's suggestion
that §526(a)(4) broadly prohibits debt relief agencies from
discussing covered subjects instead of merely proscribing
affirmative advice to undertake a particular action. Sec
tion 526(a)(4) by its terms prevents debt relief agencies
only from "advis[ing]" assisted persons "to incur" more
debt. Covered professionals remain free to "tal[k] fully
and candidly about the incurrence of debt in contempla
tion of filing a bankruptcy case." Brief for Milavetz 73.
Section 526(a)(4) requires professionals only to avoid
instructing or encouraging assisted persons to take on
more debt in that circumstance. Cf. ABA Model Rule of
Professional Conduct 1.2(d) (2009) ("A lawyer shall not
counsel a client to engage, or assist a client, in conduct
that the lawyer knows is criminal or fraudulent, but a
lawyer may discuss the legal consequences of any pro
posed course of conduct with a client and may counsel or
assist a client to make a good faith effort to determine the
validity, scope, meaning or application of the law"). Even
if the statute were not clear in this regard, we would reach
the same conclusion about its scope because the inhibition
of frank discussion serves no conceivable purpose within
the statutory scheme. Cf. Johnson v. United States, 529
U. S. 694, 706, n. 9 (2000).5
 -  -  -  -  -  -
   5 If read as Milavetz advocates, §526(a)(4) would seriously undermine

the attorney-client relationship. Earlier this Term, we acknowledged
the importance of the attorney-client privilege as a means of protecting
that relationship and fostering robust discussion. See Mohawk Indus
tries, Inc. v. Carpenter, 558 U. S. ___, ___ (2009) (slip op., at 7). Reiter
                    Cite as: 559 U. S. ____ (2010)                  17

                         Opinion of the Court

   Finally, we reject Milavetz's contention that, narrowly
construed, §526(a)(4) is impermissibly vague. Milavetz
urges that the concept of abusive prefiling conduct is too
indefinite to withstand constitutional scrutiny and that
uncertainty regarding the scope of the prohibition will
chill protected speech. We disagree.
   Under our reading of the statute, of course, the prohib
ited advice is not defined in terms of abusive prefiling
conduct but rather the incurrence of additional debt when
the impelling reason is the anticipation of bankruptcy.
Even if the test depended upon the notion of abuse, how
ever, Milavetz's claim would be fatally undermined by
other provisions of the Bankruptcy Code, to which that
concept is no stranger. As discussed above, the Code
authorizes a bankruptcy court to decline to discharge
fraudulent debts, see §523(a)(2), or to dismiss a case or
convert it to a case under another chapter if it finds that
granting relief would constitute abuse, see §707(b)(1).
Attorneys and other professionals who give debtors bank
ruptcy advice must know of these provisions and their
consequences for a debtor who in bad faith incurs addi
tional debt prior to filing. Indeed, §707(b)(4)(C) states that
an attorney's signature on bankruptcy filings "shall consti
tute a certification that the attorney has" determined that
the filing "does not constitute an abuse under [§707(b)(1)]."
Against this backdrop, it is hard to see how a rule that
narrowly prohibits an attorney from affirmatively advising
a client to commit this type of abusive prefiling conduct
could chill attorney speech or inhibit the attorney-client
relationship. Our construction of §526(a)(4) to prevent
only advice principally motivated by the prospect of bank

 -  -  -  -  -  -

ating the significance of such dialogue, we note that §526(a)(4), as

narrowly construed, presents no impediment to " 'full and frank' "

discussions. Ibid. (quoting Upjohn Co. v. United States, 449 U. S. 383,

389 (1981)).

18      MILAVETZ, GALLOP & MILAVETZ, P. A. v. UNITED

                          STATES

                     Opinion of the Court

ruptcy further ensures that professionals cannot unknow
ingly run afoul of its proscription.6 Because the scope of
the prohibition is adequately defined, both on its own
terms and by reference to the Code's other provisions, we
reject Milavetz's vagueness claim.
  As the foregoing shows, the language of the statute,
together with other evidence of its purpose, makes this
narrow reading of §526(a)(4) not merely a plausible inter
pretation but the more natural one. Accordingly, we reject
the Eighth Circuit's conclusion and hold that a debt relief
agency violates §526(a)(4) only when the impetus of the
advice to incur more debt is the expectation of filing for
bankruptcy and obtaining the attendant relief. Because
our reading of the statute supplies a sufficient ground for
reversing the Court of Appeals' decision, and because
Milavetz challenges the constitutionality of the statute, as
narrowed, only on vagueness grounds, we need not further
consider whether the statute so construed withstands
First Amendment scrutiny.
                          C
  Finally, we address the validity of §528's challenged
disclosure requirements. Our first task in resolving this
 -  -  -  -  -  -
  6 The hypothetical questions Milavetz posits regarding the permissi

bility of advice to incur debt in certain circumstances, see Brief for
Milavetz 48-51, are easily answered by reference to whether the
expectation of filing for bankruptcy (and obtaining a discharge) im
pelled the advice. We emphasize that awareness of the possibility of
bankruptcy is insufficient to trigger §526(a)(4)'s prohibition. Instead,
that provision proscribes only advice to incur more debt that is princi
pally motivated by that likelihood. Thus, advice to refinance a mort
gage or purchase a reliable car prior to filing because doing so will
reduce the debtor's interest rates or improve his ability to repay is not
prohibited, as the promise of enhanced financial prospects, rather than
the anticipated filing, is the impelling cause. Advice to incur additional
debt to buy groceries, pay medical bills, or make other purchases
"reasonably necessary for the support or maintenance of the debtor or a
dependent of the debtor," §523(a)(2)(C)(ii)(II), is similarly permissible.
                     Cite as: 559 U. S. ____ (2010)                  19

                         Opinion of the Court

question is to determine the contours of Milavetz's claim.
Although the nature of its challenge is not entirely clear
from the briefing or decisions below, counsel for Milavetz
insisted at oral argument that this is "not a facial chal
lenge; it's an as-applied challenge." Tr. of Oral Arg. 26.
We will approach the question consistent with Milavetz's
characterization.7
   We next consider the standard of scrutiny applicable to
§528's disclosure requirements. The parties agree, as do
we, that the challenged provisions regulate only commer
cial speech. Milavetz contends that our decision in Cen
tral Hudson Gas & Elec. Corp. v. Public Serv. Comm'n of
N. Y., 447 U. S. 557 (1980), supplies the proper standard
for reviewing these requirements. The Court in that case
held that restrictions on nonmisleading commercial speech
regarding lawful activity must withstand intermediate
scrutiny - that is, they must "directly advanc[e]" a sub
stantial governmental interest and be "n[o] more extensive
than is necessary to serve that interest." Id., at 566.
Contesting Milavetz's premise, the Government maintains
that §528 is directed at misleading commercial speech.
For that reason, and because the challenged provisions
impose a disclosure requirement rather than an affirma
tive limitation on speech, the Government contends that
the less exacting scrutiny described in Zauderer governs
our review. We agree.
   Zauderer addressed the validity of a rule of professional
conduct that required attorneys who advertised contin
gency-fee services to disclose in their advertisements that
a losing client might still be responsible for certain litiga
 -  -  -  -  -  -
  7 In so doing, we note that our ability to evaluate §528's validity as

applied to Milavetz is constrained by the lack of a developed record.
Because the parties have introduced no exhibits or other evidence to
ground our analysis, we are guided in this preenforcement challenge
only by Milavetz's status - i.e., as a law firm or attorney - and its
general claims about the nature of its advertisements.
20     MILAVETZ, GALLOP & MILAVETZ, P. A. v. UNITED

                         STATES

                    Opinion of the Court

tion fees and costs. Noting that First Amendment protec
tion for commercial speech is justified in large part by the
information's value to consumers, the Court concluded
that an attorney's constitutionally protected interest in not
providing the required factual information is "minimal."
471 U. S., at 651. Unjustified or unduly burdensome
disclosure requirements offend the First Amendment by
chilling protected speech, but "an advertiser's rights are
adequately protected as long as disclosure requirements
are reasonably related to the State's interest in preventing
deception of consumers." Ibid.
   The challenged provisions of §528 share the essential
features of the rule at issue in Zauderer. As in that case,
§528's required disclosures are intended to combat the
problem of inherently misleading commercial advertise
ments - specifically, the promise of debt relief without any
reference to the possibility of filing for bankruptcy, which
has inherent costs. Additionally, the disclosures entail
only an accurate statement identifying the advertiser's
legal status and the character of the assistance provided,
and they do not prevent debt relief agencies like Milavetz
from conveying any additional information.
   The same characteristics of §528 that make it analogous
to the rule in Zauderer serve to distinguish it from those
at issue in In re R. M. J., 455 U. S. 191 (1982), to which
the Court applied the intermediate scrutiny of Central
Hudson. The ethical rules addressed in R. M. J. prohib
ited attorneys from advertising their practice areas in
terms other than those prescribed by the State Supreme
Court and from announcing the courts in which they were
admitted to practice. See 455 U. S., at 197-198. Finding
that the restricted statements were not inherently mis
leading and that the State had failed to show that the
appellant's advertisements were themselves likely to
mislead consumers, see id., at 205, the Court applied
Central Hudson's intermediate scrutiny and invalidated
                  Cite as: 559 U. S. ____ (2010)           21

                      Opinion of the Court

the restrictions as insufficiently tailored to any substan
tial state interest, 455 U. S., at 205-206. In so holding,
the Court emphasized that States retain authority to
regulate inherently misleading advertisements, particu
larly through disclosure requirements, and it noted that
advertisements for professional services pose a special risk
of deception. See id., at 203, 207.
   Milavetz makes much of the fact that the Government
in these consolidated cases has adduced no evidence that
its advertisements are misleading. Zauderer forecloses
that argument: "When the possibility of deception is as
self-evident as it is in this case, we need not require the
State to 'conduct a survey of the . . . public before it [may]
determine that the [advertisement] had a tendency to
mislead.' " 471 U. S., at 652-653 (quoting FTC v. Colgate-
Palmolive Co., 380 U. S. 374, 391-392 (1965)). Evidence
in the congressional record demonstrating a pattern of
advertisements that hold out the promise of debt relief
without alerting consumers to its potential cost, see 1998
Hearings, pt. III, at 86, 90-94, is adequate to establish
that the likelihood of deception in this case "is hardly a
speculative one," 471 U. S., at 652.
   Milavetz alternatively argues that the term "debt relief
agency" is confusing and misleading and that requiring its
inclusion in advertisements cannot be "reasonably related"
to the Government's interest in preventing consumer
deception, as Zauderer requires. Id., at 651. This conten
tion amounts to little more than a preference on Milavetz's
part for referring to itself as something other than a "debt
relief agency" - e.g., an attorney or a law firm. For several
reasons, we conclude that this preference lacks any consti
tutional basis. First, Milavetz offers no evidence to sup
port its claim that the label is confusing. Because §528 by
its terms applies only to debt relief agencies, the disclo
sures are necessarily accurate to that extent: Only debt
relief agencies must identify themselves as such in their
22     MILAVETZ, GALLOP & MILAVETZ, P. A. v. UNITED
                         STATES
                    Opinion of the Court

advertisements. This statement provides interested ob
servers with pertinent information about the advertiser's
services and client obligations.
   Other information that Milavetz must or may include in
its advertisements for bankruptcy-assistance services
provides additional assurance that consumers will not
misunderstand the term. The required statement that the
advertiser " 'help[s] people file for bankruptcy relief' " gives
meaningful context to the term "debt relief agency." And
Milavetz may further identify itself as a law firm or attor
ney. Section 528 also gives Milavetz flexibility to tailor
the disclosures to its individual circumstances, as long as
the resulting statements are "substantially similar" to the
statutory examples. §§528(a)(4) and (b)(2)(B).
   Finally, we reject Milavetz's argument that §528 is not
reasonably related to any governmental interest because it
applies equally to attorneys who represent creditors, as
Milavetz sometimes does. The required disclosures, Mi
lavetz contends, would be counterfactual and misleading
in that context. This claim is premised on an untenable
reading of the statute. We think it evident from the defi
nition of "assisted person" - which is stated in terms of the
person's debts, see §101(3) - and from the text and struc
ture of the debt-relief-agency provisions in §§526, 527, and
528 that those provisions, including §528's disclosure
requirements, govern only professionals who offer bank
ruptcy-related services to consumer debtors. Section 528
is itself expressly concerned with advertisements pertain
ing to "bankruptcy assistance services," "the benefits of
bankruptcy," "excessive debt, debt collection pressure, or
inability to pay any consumer debt," §§528(a)(3) and (b)(2).
Moreover, like the other debt-relief-agency provisions, that
section is codified in a subchapter of the Bankruptcy Code
entitled "DEBTOR'S DUTIES AND BENEFITS."                      11
U. S. C., ch. 5, subch. II. In context, reading §528 to gov
ern advertisements aimed at creditors would be as anoma
                 Cite as: 559 U. S. ____ (2010)           23

                     Opinion of the Court

lous as the result of which Milavetz complains. Once
again, we decline Milavetz's invitation to adopt a view of
the statute that is contrary to its plain meaning and would
produce an absurd result.
   Because §528's requirements that Milavetz identify
itself as a debt relief agency and include certain informa
tion about its bankruptcy-assistance and related services
are "reasonably related to the [Government's] interest in
preventing deception of consumers," Zauderer, 471 U. S.,
at 651, we uphold those provisions as applied to Milavetz.
                            IV
  For the foregoing reasons, the judgment of the Court of
Appeals for the Eighth Circuit is affirmed as to §§101(12A)
and 528 and reversed as to §526(a)(4), and the cases are
remanded for further proceedings consistent with this
opinion.
                                            It is so ordered.
                 Cite as: 559 U. S. ____ (2010)           1

                     Opinion of SCALIA, J.

SUPREME COURT OF THE UNITED STATES
                         _________________

                  Nos. 08-1119 and 08-1225
                         _________________

   MILAVETZ, GALLOP & MILAVETZ, P. A., ET AL.,
                PETITIONERS
08-1119              v.
               UNITED STATES

          UNITED STATES, PETITIONER
08-1225               v.
    MILAVETZ, GALLOP & MILAVETZ, P. A., ET AL.
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
           APPEALS FOR THE EIGHTH CIRCUIT
                        [March 8, 2010]

  JUSTICE SCALIA, concurring in part and concurring in
the judgment.
  I join the opinion of the Court, except for footnote 3,
which notes that the legislative history supports what the
statute unambiguously says. The Court first notes that
statements in the Report of the House Committee on the
Judiciary "indicate concern with abusive practices under
taken by attorneys." Ante, at 6, n. 3. Perhaps, but only
the concern of the author of the Report. Such statements
tell us nothing about what the statute means, since (1) we
do not know that the members of the Committee read the
Report, (2) it is almost certain that they did not vote on
the Report (that is not the practice), and (3) even if they
did read and vote on it, they were not, after all, those who
made this law. The statute before us is a law because its
text was approved by a majority vote of the House and the
Senate, and was signed by the President. Even indulging
the extravagant assumption that Members of the House
2       MILAVETZ, GALLOP & MILAVETZ, P. A. v. UNITED

                          STATES

                     Opinion of SCALIA, J.

other than members of its Committee on the Judiciary
read the Report (and the further extravagant assumption
that they agreed with it), the Members of the Senate could
not possibly have read it, since it did not exist when the
Senate passed the Bankruptcy Abuse Prevention and
Consumer Protection Act of 2005. And the President
surely had more important things to do.
  The footnote's other source of legislative history is truly
mystifying. For the proposition that "the legislative record
elsewhere documents misconduct by attorneys" which was
presumably the concern of Congress, the Court cites a
reproduction of a tasteless advertisement that was (1) an
attachment to the written statement of a witness, (2) in a
hearing held seven years prior to this statute's passage,
(3) before a subcommittee of the House considering a
different consumer bankruptcy reform bill that never
passed.* "Elsewhere" indeed.
  The Court acknowledges that nothing can be gained by
this superfluous citation (it admits the footnote is "unnec
essary in light of the statute's unambiguous language,"
ante, at 6, n. 3). But much can be lost. Our cases have
said that legislative history is irrelevant when the statu
tory text is clear. See, e.g., United States v. Gonzales, 520
U. S. 1, 6 (1997); Connecticut Nat. Bank v. Germain, 503
U. S. 249, 254 (1992). The footnote advises conscientious
attorneys that this is not true, and that they must spend
time and their clients' treasure combing the annals of
legislative history in all cases: To buttress their case
 -  -  -  -  -  -
   * The Court protests that the earlier hearing was "part of the record
cited by the 2005 House Report," ante, at 6, n. 3. The page it cites,
however, does nothing more than note that the earlier hearing took
place, see H. R. Rep. No. 109-31, pt. 1, p. 7 (2005). Are we to believe
that this brought to the attention of the committee (much less of the
whole Congress) an attachment to the testimony of one of the witnesses
at that long-ago hearing? Of course not. That legislative history shows
what "Congress" intended is a fiction requiring no support in reality.
                  Cite as: 559 U. S. ____ (2010)             3

                      Opinion of SCALIA, J.

where the statutory text is unambiguously in their favor;
and to attack an unambiguous text that is against them.
If legislative history is relevant to confirm that a clear text
means what it says, it is presumably relevant to show that
an apparently clear text does not mean what it seems to
say. Even for those who believe in the legal fiction that
committee reports reflect congressional intent, footnote 3
is a bridge too far.
                 Cite as: 559 U. S. ____ (2010)           1

                    Opinion of THOMAS, J.

SUPREME COURT OF THE UNITED STATES
                         _________________

                  Nos. 08-1119 and 08-1225
                         _________________

   MILAVETZ, GALLOP & MILAVETZ, P. A., ET AL.,
                PETITIONERS
08-1119              v.
               UNITED STATES

          UNITED STATES, PETITIONER
08-1225               v.
    MILAVETZ, GALLOP & MILAVETZ, P. A., ET AL.
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
           APPEALS FOR THE EIGHTH CIRCUIT
                        [March 8, 2010]

  JUSTICE THOMAS, concurring in part and concurring in
the judgment.
  I concur in the judgment and join all but Part III-C of
the Court's opinion. I agree with the Court that 11
U. S. C. §528's advertising disclosure requirements sur
vive First Amendment scrutiny on the record before us. I
write separately because different reasons lead me to that
conclusion.
  I have never been persuaded that there is any basis in
the First Amendment for the relaxed scrutiny this Court
applies to laws that suppress nonmisleading commercial
speech. See 44 Liquormart, Inc. v. Rhode Island, 517 U. S.
484, 522-523 (1996) (opinion concurring in part and con
curring in judgment) (discussing Central Hudson Gas &
Elec. Corp. v. Public Serv. Comm'n of N. Y., 447 U. S. 557
(1980)). In this case, the Court applies a still lower stan
dard of scrutiny to review a law that compels the disclo
sure of commercial speech - i.e., the rule articulated in
2      MILAVETZ, GALLOP & MILAVETZ, P. A. v. UNITED

                         STATES

                   Opinion of THOMAS, J.

Zauderer v. Office of Disciplinary Counsel of Supreme
Court of Ohio, 471 U. S. 626 (1985), that laws that require
the disclosure of factual information in commercial adver
tising may be upheld so long as they are "reasonably
related" to the government's interest in preventing con
sumer deception, id., at 651.
   I am skeptical of the premise on which Zauderer rests -
that, in the commercial-speech context, "the First Amend
ment interests implicated by disclosure requirements are
substantially weaker than those at stake when speech is
actually suppressed," id., at 652, n. 14; see id., at 650
(citing "material differences between disclosure require
ments and outright prohibitions on speech"). We have
refused in other contexts to attach any "constitutional
significance" to the difference between regulations that
compel protected speech and regulations that restrict it.
See, e.g., Riley v. National Federation of Blind of N. C.,
Inc., 487 U. S. 781, 796-797 (1988). I see no reason why
that difference should acquire constitutional significance
merely because the regulations at issue involve commer
cial speech. See Glickman v. Wileman Brothers & Elliott,
Inc., 521 U. S. 457, 480-481 (1997) (Souter, J., dissenting)
(arguing that "commercial speech is . . . subject to [this]
First Amendment principle: that compelling cognizable
speech officially is just as suspect as suppressing it, and is
typically subject to the same level of scrutiny"); id., at 504
(THOMAS, J., dissenting); cf. United States v. United Foods,
Inc., 533 U. S. 405, 419 (2001) (THOMAS, J., concurring)
(stating that regulations that compel funding for commer
cial advertising "must be subjected to the most stringent
First Amendment scrutiny").
   Accordingly, I would be willing to reexamine Zauderer
and its progeny in an appropriate case to determine
whether these precedents provide sufficient First Amend
ment protection against government-mandated disclo
                     Cite as: 559 U. S. ____ (2010)                     3

                         Opinion of THOMAS, J.

sures.1 Because no party asks us to do so here, however, I
agree with the Court that the Zauderer standard governs
our review of the challenge to §528 brought by the Milav
etz law firm and the other plaintiffs in this action (herein
after Milavetz).
  Yet even under Zauderer, we "have not presumptively
endorsed" laws requiring the use of "government-scripted
disclaimers" in commercial advertising. See Borgner v.
Florida Bd. of Dentistry, 537 U. S. 1080, 1082 (2002)
(THOMAS, J., dissenting from denial of certiorari). Zaud
erer upheld the imposition of sanctions against an attor
ney under a rule of professional conduct that required
advertisements for contingency-fee services to disclose
that losing clients might be responsible for litigation fees
and costs. See 471 U. S., at 650-653. Importantly, how
ever, Zauderer's advertisement was found to be misleading
on its face, and the regulation in that case did not man
date the specific form or text of the disclosure. Ibid. Thus,
Zauderer does not stand for the proposition that the gov
ernment can constitutionally compel the use of a scripted
disclaimer in any circumstance in which its interest in
 -  -  -  -  -  -
   1 I have no quarrel with the principle that advertisements that are

false or misleading, or that propose an illegal transaction, may be
proscribed. See 44 Liquormart, Inc. v. Rhode Island, 517 U. S. 484, 520
(1996) (opinion concurring in part and concurring in judgment).
Furthermore, I acknowledge this Court's longstanding assumption that
a consumer-fraud regulation that compels the disclosure of certain
factual information in advertisements may intrude less significantly on
First Amendment interests than an outright prohibition on all adver
tisements that have the potential to mislead. See, e.g., Virginia Bd. of
Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U. S. 748,
771-772 (1976); Zauderer v. Office of Disciplinary Counsel of Supreme
Court of Ohio, 471 U. S. 626, 651-652, n. 14 (1985); Riley v. National
Federation of Blind of N. C., Inc., 487 U. S. 781, 796, n. 9 (1988);
Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n of N. Y., 447
U. S. 557, 565 (1980). But even if that assumption is correct, I doubt
that it justifies an entirely different standard of review for regulations
that compel, rather than suppress, commercial speech.
4     MILAVETZ, GALLOP & MILAVETZ, P. A. v. UNITED

                        STATES

                  Opinion of THOMAS, J.

preventing consumer deception might plausibly be at
stake. In other words, a bare assertion by the government
that a disclosure requirement is "intended" to prevent
consumer deception, standing alone, is not sufficient to
uphold the requirement as applied to all speech that falls
within its sweep. See ante, at 20.
   Instead, our precedents make clear that regulations
aimed at false or misleading advertisements are permissi
ble only where "the particular advertising is inherently
likely to deceive or where the record indicates that a par
ticular form or method of advertising has in fact been
deceptive." In re R. M. J., 455 U. S. 191, 202 (1982) (em
phasis added); see Zauderer, supra, at 651 ("recogniz[ing]
that unjustified or unduly burdensome disclosure re
quirements might offend the First Amendment"). There
fore, a disclosure requirement passes constitutional mus
ter only to the extent that it is aimed at advertisements
that, by their nature, possess these traits. See R. M. J.,
supra, at 202; Ibanez v. Florida Dept. of Business and
Professional Regulation, Bd. of Accountancy, 512 U. S.
136, 143, 146-147 (1994).
   I do not read the Court's opinion to hold otherwise. See
ante, at 20. Accordingly, and with that understanding, I
turn to the question whether Milavetz's challenge to
§528's disclosure requirements survives Zauderer scrutiny
on the record before us.
   As the Court notes, the posture of Milavetz's challenge
inhibits our review of its First Amendment claim. See
ante, at 19, n. 7. Milavetz challenged §528's constitution
ality before the statute had ever been enforced against any
of the firm's advertisements. Although Milavetz purports
to challenge §528 only " 'as-applied' " to its own advertis
ing, see ante, at 19, it did not introduce any evidence or
exhibits to substantiate its claim. Thus, no court has seen
a sampling of Milavetz's advertisements or even a declara
tion describing their contents and the media through
                     Cite as: 559 U. S. ____ (2010)                   5

                         Opinion of THOMAS, J.

which Milavetz seeks to transmit them. As a consequence,
Milavetz's nominal "as applied" challenge appears strik
ingly similar to a facial challenge.
   We generally disapprove of such challenges because
they "often rest on speculation" and require courts to
engage in " 'premature interpretation of statutes on the
basis of factually barebones records.' " Washington State
Grange v. Washington State Republican Party, 552 U. S.
442, 450 (2008) (quoting Sabri v. United States, 541 U. S.
600, 609 (2004)). Milavetz's claim invites the same prob
lems. Milavetz alleges that §528's disclosure require
ments are unconstitutional as applied to its advertise
ments because its advertisements are not misleading and
because the disclaimer required by §528 will create, rather
than reduce, confusion for Milavetz's potential clients.
That may well be true. But because no record evidence of
Milavetz's advertisements exists to guide our review, we
can only speculate about the ways in which the statute
might be applied to Milavetz's speech.
   When forced to determine the constitutionality of a
statute based solely on such conjecture, we will uphold the
law if there is any "conceivabl[e]" manner in which it can
be enforced consistent with the First Amendment. Wash
ington State Grange, supra, at 456. In this case, both
parties agree that §528's disclosure requirements cover, at
a minimum, deceptive advertisements that promise to
" 'wipe out' " debts without mentioning bankruptcy as the
means of accomplishing this goal.2 Brief for Milavetz 82,
 -  -  -  -  -  -
  2 Atoral argument, Milavetz's counsel declined to describe Milavetz's
challenge to §528 as a facial overbreadth claim, Tr. of Oral Arg. 25-26,
and Milavetz's briefs make no such contention. But even viewing
Milavetz's argument as a claim that §528 is facially overbroad because
it applies to nonmisleading advertisements for bankruptcy-related
services, such an argument must fail. First, as noted, Milavetz ac
knowledges that §528 can be constitutionally applied to deceptive
bankruptcy-related advertisements and, thus, at least one "set of
6       MILAVETZ, GALLOP & MILAVETZ, P. A. v. UNITED

                          STATES

                    Opinion of THOMAS, J.

86; Brief for United States 60-62. As a result, there is at
least one set of facts on which the statute could be consti
tutionally applied. Thus, I agree with the Court that
Milavetz's challenge to §528 must fail.

 -  -  -  -  -  -

circumstances exists under which [§528] would be valid." United States

v. Salerno, 481 U. S. 739, 745 (1987). Second, Milavetz does not at
tempt to argue that §528's unconstitutional applications are "substan
tial" in number when judged in relation to this "plainly legitimate
sweep." Washington State Grange v. Washington State Republican
Party, 552 U. S. 442, 449-450, and n. 6 (2008) (internal quotation
marks omitted).


409 U.S. 100 (1972)
COOL
v.
UNITED STATES.
No. 72-72.
Supreme Court of United States.
Decided December 4, 1972.
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT.
PER CURIAM.
The petition for a writ of certiorari is granted.
In this case, the court below held in effect that in a criminal trial, the jury may be instructed to ignore defense testimony unless it believes beyond a reasonable doubt that the testimony is true. That holding is fundamentally inconsistent with our prior decisions in In re Winship, 397 U. S. 358 (1970), and Washington v. Texas, 388 U. S. 14 (1967), and must therefore be reversed.
After a jury trial, petitioner was found guilty of possessing and concealing, with intent to defraud, counterfeit obligations of the United States. The evidence showed that on June 2, 1970, petitioner, her husband, and one Robert E. Voyles were traveling together by car between St. Louis, Missouri, and Brazil, Indiana. Upon reaching Brazil, Voyles left petitioner and her husband and passed two counterfeit bills at a local store. He was then arrested shortly after he entered the car in which petitioner and her husband were waiting.
After his arrest, Voyles was placed in the police car and taken to the station house. Petitioner and her husband *101 were told to follow in their own car. A Mr. Baumunk testified that he saw petitioner throw a paper sack out of the car window as petitioner was following the police car. The bag was subsequently found to contain counterfeit bills. Police also found three counterfeit bills crumpled up under the right seat of petitioner's car.
Although petitioner testified in her own defense, she relied primarily on the testimony of Voyles. Voyles freely admitted his own guilt,[1] but steadfastly insisted that neither petitioner nor her husband had anything to do with the crime. He testified that petitioner had merely agreed to give him a ride and knew nothing about the counterfeit bills that he carried with him. When the car stopped in Brazil, Voyles allegedly removed some of the counterfeit bills from his satchel which he kept in petitioner's trunk, and concealed the rest of the bills in a sack which he placed under the front bumper by the headlight. The defense argued that it was this sack that Baumunk saw fall to the ground as petitioner drove to the police station. Voyles also stated that after he had rejoined petitioner, he saw police approaching the car and threw the remaining bills on his person onto the car floor, again without the knowledge of petitioner. Petitioner thus asserts that she was not in knowing possession of the bills on the car floor.
With the case in this posture, the Government's position clearly depended upon its ability to discredit Voyles, since his testimony was completely exculpatory. Over strenuous defense objection,[2] the trial judge gave the jury *102 a lengthy "accomplice instruction" to be used in evaluating Voyles' testimony. After first defining the word "accomplice" and warning that an accomplice's testimony is "open to suspicion," the judge made the following statement: "However, I charge you that the testimony of an accomplice is competent evidence and it is for you to pass upon the credibility thereof. If the testimony carries conviction and you are convinced it is true beyond a reasonable doubt, the jury should give it the same effect as you would to a witness not in any respect implicated in the alleged crime and you are not only justified, but it is your duty, not to throw this testimony out because it comes from a tainted source." (Emphasis added.)
The clear implication of this instruction was that the jury should disregard Voyles' testimony unless it was "convinced it is true beyond a reasonable doubt."[3] Such *103 an instruction places an improper burden on the defense and allows the jury to convict despite its failure to find guilt beyond a reasonable doubt.[4]
Accomplice instructions have long been in use and have been repeatedly approved. See, e. g., Holmgren v. United States, 217 U. S. 509, 523-524 (1910). In most instances, they represent no more than a commonsense recognition that an accomplice may have a special interest in testifying, thus casting doubt upon his veracity. See, e. g., Crawford v. United States, 212 U. S. 183, 204 (1909). But in most of the recorded cases, the instruction has been used when the accomplice turned State's evidence and testified against the defendant. See generally McMillen v. United States, 386 F. 2d 29 (CA1 1967), and cases cited therein. No constitutional problem is posed when the judge instructs a jury to receive the prosecution's accomplice testimony "with care and caution." See, e. g., United States v. George, 319 F. 2d 77, 80 (CA6 1963). Cf. United States v. Nolte, 440 F. 2d 1124 (CA5 1971).
*104 But there is an essential difference between instructing a jury on the care with which it should scrutinize certain evidence in determining how much weight to accord it and instructing a jury, as the judge did here, that as a predicate to the consideration of certain evidence, it must find it true beyond a reasonable doubt.
In Washington v. Texas, supra, we held that a criminal defendant has a Sixth Amendment right to present to the jury exculpatory testimony of an accomplice. The instruction given below impermissibly obstructs the exercise of that right by totally excluding relevant evidence unless the jury makes a preliminary determination that it is extremely reliable.
Moreover, the instruction also has the effect of substantially reducing the Government's burden of proof. We held in In re Winship, supra, that the Constitution requires proof of guilt beyond a reasonable doubt. It is possible that Voyles' testimony would have created a reasonable doubt in the minds of the jury, but that it was not considered because the testimony itself was not believable beyond a reasonable doubt. By creating an artificial barrier to the consideration of relevant defense testimony putatively credible by a preponderance of the evidence, the trial judge reduced the level of proof necessary for the Government to carry its burden. Indeed, where, as here, the defendant's case rests almost entirely on accomplice testimony, the effect of the judge's instructions is to require the defendant to establish his innocence beyond a reasonable doubt.
Because such a requirement is plainly inconsistent with the constitutionally rooted presumption of innocence, the conviction must be reversed and the cause remanded for further proceedings not inconsistent with this opinion.
It is so ordered.
*105 MR. JUSTICE REHNQUIST, with whom THE CHIEF JUSTICE and MR. JUSTICE BLACKMUN concur, dissenting.
I believe that the Court's fine-spun parsing of the trial judge's charge to the jury turns the appellate review of this case into the sort of "quest for error" which was said in Bihn v. United States, 328 U. S. 633, 638 (1946), to be forbidden by Rule 52 (a) of the Federal Rules of Criminal Procedure,[1] and by 28 U. S. C. § 2111.[2]
The testimony of the witness Voyles, called by petitioner as a witness in her behalf, presented the trial judge with something of a dilemma in determining how he should charge the jury. Much of Voyles' testimony tended to exculpate petitioner, but there were significant aspects of it that did not. He substantiated the fact that the petitioner and her husband[3] had traveled with him from St. Louis to Brazil, Indiana. He corroborated prosecution evidence that both petitioner and her husband gave the same false last name of Gibbs when booked at the police station in Brazil. He also suggested a closeness to petitioner's husband which was scarcely helpful to their defense when he testified that "I was a little sore at Mike [petitioner's husband], because I thought Mike should help me [get out on bond]."
The trial judge made clear in his colloquy with counsel, while dealing with their objections to the charge, that he *106 was concerned about the ambivalence of Voyles' testimony and felt it necessary to give the charge relating to accomplices. Petitioner's counsel in objecting to that portion of the charge did so on a quite different ground from that now sustained by the Court; the ground of objection stated to the trial court was apparently that the mention of the term "accomplice" to the jury suggested that petitioner and her husband were in fact guilty. Such a ground of objection was wholly without merit, since, as the Court of Appeals pointed out in its opinion in this case, the instruction left it entirely to the jury to determine whether or not the facts existed that would make Voyles an accomplice.
The trial court gave 36 separate instructions to the jury, which covered some 52 pages of the transcript in this case. The instruction in question covers two pages, and the Court reverses the conviction on the basis of one sentence in that one instruction. The trial judge repeatedly emphasized to the jury that the Government was obligated to prove guilt beyond a reasonable doubt. Typical is the following statement, which is repeated throughout the instructions in at least half a dozen places:
"The entire burden of proof is upon the Government from the beginning to the end of the trial and this burden of proof never shifts from the Government to the defendants, and the defendants are not bound to prove their innocence, offer any excuse, or explain anything . . . ."
The record before us does not indicate that either counsel so much as mentioned the accomplice instruction in his argument to the jury. Nonetheless, the Court concludes that because the instruction contained a "negative pregnant" that could be taken to mean that the jurors should reject Voyles' testimony if they had a reasonable *107 doubt as to its veracity, the conviction is to be reversed.
I had thought the day long past when even appellate courts of the first instance, such as the Court of Appeals in this case, parsed instructions and engaged in nice semantic distinctions in the absence of any showing that would satisfy an ordinary lawyer or layman that substantial rights of one of the parties had been prejudiced by the supposed error. If the nuance of the instruction upon which reversal is now based did not suggest itself to petitioner's trial counsel, it seems doubtful that it suggested itself to the jury either:
"A party must make every reasonable effort to secure from the trial court correct rulings or such at least as are satisfactory to him before he will be permitted to ask any review by the appellate tribunal; and to that end he must be distinct and specific in his objections and exceptions. . . . `. . . [J]ustice itself and fairness to the court which makes the rulings complained of, require that the attention of that court shall be specifically called to the precise point to which exception is taken, that it may have an opportunity to reconsider the matter and remove the ground of exception.' " Allis v. United States, 155 U. S. 117, 122 (1894), quoting Harvey v. Tyler, 2 Wall. 328, 339 (1865).
Nor, as pointed out above, did this particular instruction of the trial court stand alone; it was incorporated into a series of instructions that had as their predominant theme that the burden of proof was upon the Government at every stage to prove guilt beyond a reasonable doubt. The trial court's instructions are to be taken as a whole, and even if an isolated passage might be error if standing by itself, that alone is not a sufficient ground *108 for reversal. Boyd v. United States, 271 U. S. 104, 107 (1926).
The Court's reversal on the ground that one of the instructions contained a "negative pregnant" smacks more of the scholastic jurisprudence whose shortcomings led to the enactment of 28 U. S. C. § 2111 than it does of the commonsense approach to appellate review that that section mandates.
NOTES
[1]  At the time of his testimony, Voyles had already pleaded guilty to a charge of complicity in the possession and concealment of counterfeit notes.
[2]  The dissent suggests that the defendant objected to the accomplice instruction solely on the ground that use of the word "accomplice" suggested that the defendant was guilty. Although the defense objection was not a model of clarity, it seems apparent that it was grounded more broadly on the trial judge's decision to give the standard accomplice instruction despite the fact that the accomplice was a defense witness. The defense attorney stated: "I take exception to Instruction No. 16, as it's misleading. I don't think it belongs in this cause. There was no accomplice testified [sic] for the Government, and this could mislead them as to the person who was accused of this crime and has already pled guilty, as making an accomplice of him, when actually he is not an accomplice, because they are not involved in the crime." (Emphasis added.) Certainly, the trial judge understood this objection to be directed to his decision to give the standard cautionary instruction even though the alleged accomplice was called by the defendant. In colloquy with the defense attorney, the judge stated: "The next, `accomplice,' the evidence of both the Government and the defendants may be considered by the jury in determining the guilt or innocence, no matter who produces the witness. . . . Now there's a lot of inferences can be drawn from one item of evidence or another, and that's for the jury to decide. So long as there is some evidence, the instruction must be given. It hits both ways on that point." (Emphasis added.) Nor did the Court of Appeals indicate any doubt that defendant's objection was sufficient to preserve the point on appeal.
[3]  True, the instruction was couched in positive terms. It told the jury to consider the evidence if it believed it true beyond a reasonable doubt. But the statement contained a negative pregnant as well. There is an unacceptable risk that jurors might have thought they were to reject the evidence - "throw [it] out," in the words of the trial judge - if they had a reasonable doubt as to its veracity.
[4]  In the next paragraph of his instruction, the judge stated: "I further instruct you that testimony of an accomplice may alone and uncorroborated support your verdict of guilty of the charges in the Indictment if believed by you to prove beyond a reasonable doubt the essential elements of the charges in the Indictment against the defendants." In light of the fact that the only accomplice testimony in the case was exculpatory, this instruction was confusing to say the least. But even if it is assumed that Voyles' testimony was to some extent inculpatory, the instruction was still fundamentally unfair in that it told the jury that it could convict solely on the basis of accomplice testimony without telling it that it could acquit on this basis. Even had there been no other error, the conviction would have to be reversed on the basis of this instruction alone.
[1]  "Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded." Fed. Rule Crim. Proc. 52 (a).
[2]  "On the hearing of any appeal or writ of certiorari in any case, the court shall give judgment after an examination of the record without regard to errors or defects which do not affect the substantial rights of the parties." 28 U. S. C. § 2111.
[3]  The petitioner and her husband were tried and convicted together on the counterfeiting charges. Both appealed their convictions to the Seventh Circuit, which affirmed both. Petitioner's husband has not sought certiorari to have his conviction reviewed.


257 U.S. 85 (1921)
PENNSYLVANIA RAILROAD COMPANY
v.
WEBER, SURVIVING PARTNER OF JACOBY AND WEBER, COPARTNERS, TRADING UNDER THE FIRM NAME OF W.F. JACOBY & COMPANY.
No. 210.
Supreme Court of United States.
Argued October 13, 1921.
Decided November 7, 1921.
ERROR TO THE CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT.
*86 Mr. Henry Wolf Bikle, with whom Mr. Frederic D. McKenney and Mr. Francis I. Gowen were on the brief, for plaintiff in error.
Mr. William A. Glasgow, Jr., for defendant in error.
MR. JUSTICE DAY delivered the opinion of the court.
This cause has been the subject of much and long continued controversy. This is its third appearance in this court. The previous history of the litigation is set out in 242 U.S. 89. The action is based upon a reparation order made by the Interstate Commerce Commission in favor of Jacoby & Company. A recovery was had in the sum awarded by the Commission, with interest. At the first trial plaintiffs did not introduce the record of the testimony before the Commission. The defendant railroad company introduced testimony tending to show that the Commission in making its award of damages had used a table, attached as exhibit 10 to the record of the case, showing a discrimination of the railroad company against the plaintiffs in the distribution of coal cars in times of shortage, and produced a witness who testified that the effect of the use of the percentages in that table as the basis of awarding damages by the Commission was to give plaintiffs the undue preference in the distribution of coal cars which favored shippers had received. That being so, this court held that the recovery of a sum thus arrived at would defeat the purpose of the act to place shippers on a basis of equality. For the refusal of the trial court to give a charge based upon such use of the table the judgment of the Circuit Court of Appeals for the Third Circuit, affirming that of the District Court, was reversed, and the cause remanded for a new trial. The second trial in the District Court resulted in a verdict and judgment for the plaintiffs in the sum awarded by the Commission with interest. 263 Fed. 945. That judgment was affirmed *87 by the Circuit Court of Appeals, 269 Fed. 111, and the case is again here.
We need not repeat the discussion concerning distribution of cars in times of shortage which was held to result in undue advantage. See 242 U.S. supra, pp. 90, 91; Hillsdale Coal & Coke Co. v. Pennsylvania R.R. Co., 19 I.C.C. 362, 363, 364.
At the last trial the testimony before the Commission was put in evidence, with some additional testimony tending to show that plaintiffs had been discriminated against because of the special allotment to the Berwind-White Company of five hundred cars daily; and the sale to it, and to other companies, of a large number of cars in times of car shortage. There was evidence tending to show that but for these discriminations the plaintiffs would have received a sufficient number of cars to furnish them with all they needed during the periods complained of.
The Commission in the report condemned the practice of giving to the Berwind-White Coal Company five hundred cars daily by special allotment, and the selling of the company's own cars during the same period to favored shippers, thereby diminishing its capacity to supply the coal car requirements of other coal companies along its line.
When the Commission came to asses damages it allowed the plaintiffs $21,094.39 with interest from June 28, 1907. The order on which this award was made is set forth in 242 U.S. supra. Upon the new trial, with the additional testimony and the whole record of the Commission introduced in evidence, the judge, after charging the jury that there might be a recovery if the discriminations alleged and proved resulted in damages in the sum awarded by the Commission, charged:
"If you should find that the conclusion of the Interstate Commerce Commission that the plaintiff in the year ending April 1, 1905, should have received cars equal in *88 capacity to 59.9 per cent. of the aggregate of their mine's daily rating, and in the period between April 1 and October 18, 1905, cars equal in capacity to 59.6 per cent. of the aggregate of their mine's daily rating  -  if you should find that that conclusion was reached or arrived at because of the evidence presented by the plaintiff that the aggregate of the cars placed by the defendant at certain mines which had been selected for the purpose of comparison from those comprised in the region in which the plaintiff's mine was located, had been equal in the earlier period to 59.9 per cent. and in the later period to 59.6 per cent. of the aggregate ratings of these selected mines, [These being the percentages of cars given to preferred companies as shown in Exhibit 10.] for the basis of the Commission's conclusion, then the award was an erroneous one, and under those circumstances the finding of the Commission would lose its effect as prima facie evidence, and you would only be justified in finding for the plaintiff if you find that from the other evidence offered before the Commission, either of discrimination through distribution to favored shippers in the Tyrone region or through withholding cars from the Tyrone region, which should have been distributed there, the Commission was justified in arriving at that conclusion. If you find that the Commission was justified in arriving at that conclusion, or are satisfied from that evidence, and that evidence is reinforced by further evidence that the plaintiff has offered in the case, then you would be justified in finding a verdict in favor of the plaintiff, and assessing damages at the amount found by the Commission.
"If, however, you should find that that was an erroneous finding, then it would be your duty to find to what extent the plaintiff was damaged, I mean in case you find that the plaintiff was actually damaged you would have to find to what extent the plaintiff was actually damaged. If you leave out the evidence before the Commission the *89 Court is unable to say that there is any other evidence standing alone which would be sufficient, but the evidence which was before the Commission has all been offered before you, and some additional testimony. The proper basis of damages in that case, if the Commission has not reached the proper basis, would be upon the theory set out in the Commission's report, but not based on a comparison between what the favored shippers received and what the plaintiff received.
"If the plaintiff is entitled to recover and has suffered damages, the measure of damages would be the loss in operating, upon the coal that was actually shipped, through discrimination in favor of other shippers, together with the profits it would have made on the coal they would have been able to ship. The question as to what coal they would have been able to ship is a question for you gentlemen to decide under the evidence in this case. You have had the schedules laid before you, counsel have argued the case to you and explained the grounds on which they respectively base their demand on the one side and the defense on the other, and the questions of fact are for your determination. The defendant has offered in evidence, and has shown you these facts, in regard to the 59.9 per cent. and the 59.6 per cent., and as I have already instructed you, if you find the Commission's finding was based on that, then the Commission's finding as to the amount of damages suffered should not be considered by the jury, but the jury will be obliged independently, if they can do so, to arrive at a proper amount of damages.
"If the jury do not believe that the plaintiffs suffered any damages, or do not believe that they were discriminated against in favor of other shippers, either by the distribution of cars that were sent into this region or by the failure of the railroad company to send cars to the Tyrone region which should have been distributed there, then it *90 would be your duty to find a verdict in favor of the defendant."
As there was substantial testimony in the record to support the finding of the Commission in awarding damages in a sum at least equal to the amount assessed by it, the principal question to be decided is: May a plaintiff recover in such circumstances in a suit based upon a reparation order of the Interstate Commerce Commission when there is testimony fairly tending to show that recovery was justified because of unfair practices in the distribution of coal cars in times of shortage, which practices, as its report shows, were condemned by the Commission, although it may appear that the sum awarded by the Commission was actually based upon an erroneous calculation?
In determining the rule to govern this situation we must bear in mind that the Commission is empowered to act upon questions of unfair practices and discrimination. Pennsylvania R.R. Co. v. Clark Coal Co., 238 U.S. 456, and the previous cases in this court cited at p. 469. While this is true, when an action is brought upon a reparation order of the Commission, as it may be under § 16 of the Act to Regulate Commerce, its findings and order are prima facie evidence of the facts therein stated. Meeker v. Lehigh Valley R.R. Co., 236 U.S. 412; Second Meeker Case, 236 U.S. 434; Mills v. Lehigh Valley R.R. Co., 238 U.S. 473. These cases have disposed of the question of the right of the defendant to attack the prima facie value of the award, and have dealt with the nature of the award of the Commission in view of the statutory provisions as to its character.
That the Commission used a wrong basis in awarding damages, now that the whole record is before us, admits of no doubt. Indeed, the coincidence in the award made and the use of the percentage table shown in Exhibit No. 10 is difficult to account for except upon the basis pointed *91 out by the witness introduced by the defendant, whose testimony was made the basis of the request to charge, the refusal of which led to the reversal of the judgment in 242 U.S. supra.
The defendant in error argues that the Commission could not have used this table because it covers a different period of operation as evidenced by the number of days shown than the Commission found to have been the period covered by the operation of the plaintiffs' mine. Nevertheless, the coincidence of percentage and award remains, and the conclusion is inescapable that the Commission in determining the sum awarded used percentages which had the effect of placing the plaintiffs on a basis of equality with the favored companies. On the other hand, there is testimony tending to show that had the cars been distributed upon a basis of general equality approved by the Commission, and without resort to practices condemned by it, there would have been cars enough to have furnished plaintiffs with a sufficient number to meet their trade and requirements during the period in question. Under the circumstances here shown, when the case is fairly and fully submitted, as it was in the charge of the judge to the jury, giving a correct basis upon which there might be a recovery of damages, and there is testimony tending to show damages in at least the sum awarded by the Commission, there is no prejudicial error because of the erroneous calculation of the Commission which was the basis of its award.
Other questions are argued, but they are disposed of satisfactorily in the opinion of the Circuit Court of Appeals (269 Fed. supra), and in the opinion of the trial judge upon the motion for a new trial (263 Fed. supra).
It follows that the judgment of the Circuit Court of Appeals must be
Affirmed.